“‘There’s been a quiet, silent revolution going on,’ Carp said in an interview. ‘If you’re a conservative, you’re going to say, “Thank God.” If you’re a liberal, you’re going to put your hands over your head and say it’s a nightmare.’” By way of my friend Mark, CQ’s Kenneth Jost laments the Dubya judiciary.
Did White House officials steal a file on John Roberts’ affirmative action record from the National Archives last year? “This investigation is unresolved and the file is still missing,” says a new report by the Archives Inspector General, which Tim Noah dissects over at Slate. (Hmmm…was it reclassified, perhaps?) Still, according to the report, a White House staffer was the last person known to have the file, and “[t]he report’s findings contradicted the assertions of Archives officials, who said last August that an attendant had been in the room at all times and that the lawyers had been separated from their bags.” The mystery deepens…
Well, That’s that, then. Justices Stevens, Ginsburg, Souter, Breyer, and Kennedy: Please take your vitamins.
I already mentioned this in the Feingold post below, but it merits its own space: The brief Alito filibuster is already over, with nineteen Dems voting for cloture. There are a lot of blogs calling for the heads of the “Vichy Dems” right now, and, true, they’re not looking too good right now. But, frankly, neither is anyone else. The whole thing reeks of mismanagement and rank opportunism across the party.
I’m with Walter Shapiro: “In hindsight, the battle was effectively over after the first day of the Senate hearings when the criminally verbose Judiciary Committee Democrats failed to sustain a clear and consistent anti-Alito argument with all those cable networks broadcasting live. When politicians and interest-group leaders know that they are going to lose, they automatically retreat to a can-I-get-anything-out-of-the-wreckage calculus. So moderate senators from red states like South Dakota’s Tim Johnson decide that they can buttress their independent credentials with home-state conservatives by supporting Alito, since the outcome would be the same no matter how he voted. Groups like People for the American Way realize that shrill calls for a filibuster might preserve their fundraising base even if their years of urgent appeals to prevent a right-wing Supreme Court takeover failed to change a single Senate vote. And Kerry — whose late entry into the anti-Alito fray can be partly excused by his not serving on the Judiciary Committee — is also aware that such dramatic gestures help him maintain an up-to-date, ready-for-’08 e-mail list of Democratic activists.”
At any rate, the silver lining of this judicial nightmare (other than Judge Kennedy’s potential unpredictability) is that tomorrow, after Alito is voted through and Dubya gives his State of the Union, the GOP are officially out of good news. From tomorrow on, all the stories on tap, the continuing Iraq quagmire notwithstanding, are hearings and investigations — into the NSA wiretaps, into Abramoff, into Plamegate, into Katrina. So let’s pick ourselves up off the floor and get it together — We’ve got serious questions to ask of this administration, and, more importantly, we’ve got ourselves an election in nine months.
“Judge Alito’s record and his testimony have led me to conclude that his impulse to defer to the executive branch would make him a dangerous addition to the Supreme Court at a time when cases involving executive overreaching in the name of fighting terrorism are likely to be such an important part of the Court’s work.” Although the Senate Judiciary Dems (including Feingold) lined up against him, Sam Alito made it out of committee on a 10-8 party-line vote. Now, with his nomination before the full Senate, and with Nebraska Dem Ben Nelson joining the GOP majority, it seems, unfortunately, that the “worst nightmare of liberal democrats” will come to pass, and Alito will join the Roberts court. (For what it’s worth, Nelson wasn’t alone in his apostasy: Santorum challenger Bob Casey also came out for the judge.) Well, let’s hope Justice Alito takes a less forgiving look at executive encroachment than has Judge Alito. (Casey link via Medley.) Update: While the NYT says filibuster, Dems Robert Byrd and Tim Johnson back Alito. (Of course, if the NYT hadn’t sat on the NSA story for a year, perhaps we could have nipped Alito in the bud back in November 2004.)
“While it’s true that O’Connor has tended to vote with the majority more frequently than Kennedy, and that she has done so in some big 5-4 decisions, it’s also true that in other extremely contentious areas, it is Kennedy, not O’Connor, who has swung the court leftward.” As Dem begin to announce their no votes for Alito (while downplaying the likelihood of a filibuster), Dahlia Lithwick — who is concerned about Alito’s judgment in the relatively precedent-less world of anti-terror-law — gives us hope for the Court’s future in highlighting Anthony Kennedy as the new swing vote. (Clearly, the psycho-right despises him, which speaks well of his jurisprudence in my book.)
The (somewhat perfunctory) hearings are over, and — despite several “quiet bombshells” and troubling evasions, it appears likely that Sam Alito will be confirmed to the court as expected. Well, hopefully the purported liberalizing influence of the Court will work its mojo on Alito, although that’s not a very comforting peg on which to hang one’s hat. (Another perhaps equally unlikely possibility which I’ve heard discussed recently is that Roberts, not Alito, will become the new swing vote. One can only hope.)
Didn’t we just do this? Well, regardless, the Senate Confirmation hearings for Sam Alito are now underway. Given his dubious paper trail, his conflict-of-interest on the books, the recent disclosures about Dubya’s imperial pretensions and the possibility of a Dem filibuster, Sam “Scalito” Alito looks to have a tougher road ahead than John Roberts. But, who among the GOP, other than possibly Arlen Specter, might vote against him? Barring a Borkish meltdown before the Senate Judiciary, or, unlikelier still, an uprising over the issue of presidential power, I’d be surprised (but not at all dismayed) if Alito isn’t nominated to the bench, particularly with the public (slightly) behind him. That being said, having freakshow GOP pro-lifers like Sam Brownback and Tom Coburn froth at the mouth over Roe v. Wade probably isn’t doing Alito any favors in the court of public opinion. Update: Alito’s opening statement: Aw shucks, I’m just a humble, regular, working-class guy from Jersey, and in no way a scary conservative (although I do really dislike 60’s liberals.) Update 2: Slate‘s Dahlia Lithwick weighs in.
“What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?” He may be on the political back-burner until next month; nevertheless, Sam Alito’s nomination grows increasingly troubling, with word of another rabidly pro-life paper trail in his past which, like his conflicts of interest, he has heretofore failed to disclose.