Barring the unforeseen, Judge Samuel Alito will win confirmation to the Supreme Court. His confirmation will prove a major moment in the history of the American judiciary. It also will highlight one of the ideological culture's last abiding discriminations.
The run-up to the Alito vote featured these markers:
Tom-toms sounding the beat as to the need for more "moderates" on the Supreme Court. The creation of a D.C. industry of computer-bound researchers to comb the record of any court nominee for the merest sign of ideological deviation from a stipulated leftist norm. The nomination - and subsequent confirmation - of John Roberts as chief justice, amid leftist caterwauling that his record was thin.
Subsequent lament that - so unfairly - Harriet Miers presented with no record at all. The nomination of Judge Alito, a man possessing a more voluminous record than that of any court nominee in seven decades. And the complaints, first regarding Judge Roberts and then Judge Alito, that (a) key elements of their records were withheld by a devious White House, (b) the records at hand contained insufficient evidence of right-wing lunacy, and (c) Judges Roberts and Alito were themselves devious and unscrupulous and certainly not forthcoming in their responses to certain questions from distinguished leftist senators who detest the nominees' ideological guts.
Keep in mind these things as well: (1) The American left has lost Congress and the White House, and desperately has sought to retain at least a toe-hold in the government's third branch; (2) The word "liberal" having been culturally stigmatized - its positive use almost extirpated from the language - leftists have co-opted such words as moderate, centrist, middle-of-the-road, and mainstream for their own self-descriptive proprietary use. And (3) the ideologization of too many law schools has followed the pattern first established in, for example, the academy, the church, entertainment, and the press - as stipulated on the shingle: Conservatives need not apply.
That is the irreducible datum in the Roberts and Alito hearings.
The left deemed Robert Bork neither unbright nor uncredentialed, but too conservative. Ditto Clarence Thomas. Ditto in the gravamen of the continuing complaints about him and Justice Antonin Scalia. President Bush has pledged to nominate individuals in the Thomas-Scalia mold. Roberts and Alito are. That is why their nominations have sent loyal leftists everywhere screaming around the bend.
Again and again during the Alito hearings, senators have given their game away - perhaps most forthrightly Chuck Schumer of New York: "Are you in Justice (Sandra) O'Connor's mold or, as the president has vowed, are you in the mold of Justices Scalia and Thomas?" And: "Judge Alito certainly gives the impression of being a meticulous legal navigator. But in the end, he always seems to chart a rightward course."
As with Roberts, the blustering left barely dinged Judge Alito - on abortion, on his membership in a Princeton alumni group, on the environment, on the disabled, on health, on rights imagined or real. Exasperated liberal senators tried to unmask him as a conservative ideologue, but could not - to get him to take sides in future disputes, but he would not. He left the most devout leftist senators not impressed by his temperament and erudition, but visibly angered by his unflappability and smooth control.
And the most memorable moment in the Alito hearings is not the trouble into which he plunged when he opened his mouth, but his wife Martha-Ann driven to tears by the mean-spiritedness that these days so infuses the American left.
In implied support of Judges Roberts and Alito, these quotes:
Law writer Stuart Taylor: "(If Democrats) ever succeed in forcing nominees to detail their views, it will not only corrupt the integrity and independence of new justices. It will also, perhaps, open the way for presidents to pack the court with people who have virtually pledged their votes on a long list of issues."
Harvard professor Charles Fried: "I wonder whether the critics are not really complaining that (nominees should) start with a result - their result - and then wrestle the law around until it fitted."
South Carolina Senator Lindsey Graham: "If we insist that a nominee 'adopt my value system,' we're doing a great disservice to the judiciary."
Justices Ruth Ginsburg and Stephen Breyer - the last two nominees confirmed before Judge Roberts, and both very liberal - were elevated to their seats on the court by votes of 96-3 and 87-9 respectively. The vote of the full Senate on Judge Alito will demonstrate the extent to which adamant Senate leftists will override a nominee's merits or qualifications, and - regarding the Constitution and the law - still discriminate against his abiding principles and their derivative points of view.