Senate condemnation hearings

Thomas Sowell

1/17/2006 12:05:00 AM - Thomas Sowell

The Senate confirmation hearings for Judge Samuel Alito told us more about the Senators than it did about Judge Alito.

 First, there were those long-winded preambles to "questions" for the judge. Then there were the Mickey Mouse maneuvers and insinuations, spiced here and there with outright lies.

 The ridiculousness of the charges was classically illustrated by Senator Joseph Biden's claim that Alito had been part of a group that was trying to keep minorities and women out of Princeton. Apparently wanting everyone to meet the same admissions standards is considered to be the same as being against minorities and women.

 To dramatize his position, Senator Biden said, "I don't even like Princeton." Unfortunately for him, a radio talk show host played that back on the air -- along with a speech that Biden gave at Princeton, praising it to the skies.

 At the same level of farce was a loud and insistent demand by Senator Ted Kennedy that the Senate Judiciary Committee vote to issue a subpoena for certain records -- even though those records were readily available without a subpoena. In fact, the records in question had already been received by the committee.

 The biggest hypocrisy was asking Judge Alito questions that everyone knew in advance no judicial nominee could -- or should -- answer, and then complaining afterwards on nationwide television that he was not "forthcoming" or "responsive." 

 None of these ploys had anything to do with determining Judge Alito's qualifications to be on the Supreme Court. At most there were attempts to provoke him to anger with insulting questions, in hopes of providing an excuse for Democrats to vote against him and for the weaker Republicans to be afraid to support him.

 But Judge Alito remained unruffled and dignified.

 The real purpose of all this grandstanding was to play to the gallery of the most rabid element of Democratic Party activists, people like the Hollywood leftists who contribute big bucks and who hate everything the administration stands for, as well as most of what most Americans stand for.

 Despite the phony issues and overheated rhetoric by some members of the Senate Judiciary Committee, the only real objection to Judge Alito is that he could become the deciding "swing vote" on a closely divided Supreme Court by replacing Sandra Day O'Connor -- and that Judge Alito is not likely to be as sympathetic to liberal positions as Justice O'Connor has become over the years.

 That "swing vote" has long been the real issue in Senate confirmation hearings, whether the name of the nominee has been Bork or Alito.

 Before the massive smear campaign that defeated the nomination of Judge Robert Bork to the Supreme Court back in 1987, Antonin Scalia was confirmed unanimously -- even though he and Bork had voted almost identically in cases on the Circuit Court of Appeals.

 On a couple of cases where they voted differently, Scalia took a more conservative position than Bork. Why then was Scalia considered to be enough in the "mainstream" for his nomination to sail through, while Bork was branded a right-wing "extremist"?

 It had nothing to do with Scalia or Bork. If Bork had been nominated first, he would have sailed through and then Scalia would have been branded a right-wing extremist, because then Scalia would have been the prospective "swing vote" on the Supreme Court.

 Similarly, Judge John Roberts' nomination to be Chief Justice sailed through because he was just replacing another conservative, while Judge Alito would be replacing Justice O'Connor, who was more acceptable to the liberals.

 Those Senators who smear and denounce judicial nominees on nationwide television, and then afterwards hypocritically assure them privately that there was "nothing personal" are, in a certain twisted sense, correct. They would have lied and smeared anyone else in the same situation.

 This is also not about Samuel Alito personally in a different sense. The larger question is how we are going to get the good people that we need on our courts, if they have to go through smears and petty harassment during confirmation hearings.

 Highly qualified people usually have other options and many of them may go elsewhere rather than become the butt of cheap political games on nationwide television.