Equal Time -- Good Reasons Not to Confirm Judge Alito

Law Prof Geoffrey Stone, without resorting to inappropriate and insupportable readings of Judge Alito's opinions, and without resulting to pithy soubriquets or impetuous smears, provides a focused birds-eye view of what valid reasoning leading to a senator voting against Judge Alito's confirmation might look like. (In all seriousness, as straightforward as it is, this is my favorite thoughtpiece on the nomination so far).

He notes two relevant questions: "First, what type of justice will he be? Second, what is the proper role of the Senate?" On the first topic, Professor Stone focuses on the idea of judicial restraint. In this regard, he sees in Alito echoes of Chief Justice Rehnquist, and on this basis opines that Judge Alito ought not be confirmed.

Consider the positions of Chief Justice William Rehnquist, perhaps the best example of a modern judicial conservative. Rehnquist maintained that there is no constitutional right to abortion, no First Amendment protection of the journalist-source privilege, no constitutional prohibition of government-funded vouchers to support private religious education, and no constitutional right to prevent the government from examining your bank records. All these positions can readily be seen as examples of judicial restraint.

On the other hand, Rehnquist also maintained that affirmative action[,] campaign finance regulation, restrictions on commercial advertising, public takings of private property even with just compensation, government decisions not to fund religious expression, and certain federal laws regulating firearms are all unconstitutional. By no stretch of language or logic can such positions be characterized as “judicial restraint,” to say nothing of “strict construction” or “interpreting rather than making law.”

[snip]

It would appear that Samuel Alito is a rough approximation of William Rehnquist in terms of his perspectives, values, philosophy, and probable judicial approach. * * * * Whether that is good, bad, or indifferent depends on what you expect of a Supreme Court justice. For me, it is bad. In my judgment, the primary responsibility of the Supreme Court is to protect the relatively powerless in our society against the inherent dangers of the democratic process and to protect the process itself against the most powerful elements in our society when they attempt to manipulate the system for their own partisan or personal advantage. On my view, Rehnquist was not a “good” justice. Too often, he used his authority to promote the interests of corporations, the wealthy, mainstream religions, and law enforcement, and disregarded the interests of minorities, women, political dissenters, the press, and the disfranchised.

Okay. Note the magnanimity. The acknowledgment that this is about viewpoint rather than inherent worth. No intimations of conspiracy, of jumping at the opportunity to satiate some snarling idealogue hiding behind a judge or justice's seat on the bench. Just an honest assessment of patterns, apparent inclinations, and consequences, and a careful if brief explanation of why Professor Stone, based on the patterns and what they suggest about Judge Alito's (defensible in terms) inclinations, and given what he perceives to be the consequences of confirming Alito in light of these concerns, believes Alito ought not be confirmed.

In order to maintain the vote-no position, however, Professor Stone recognizes that one must consider the claim that confirmation is all about the "up or down vote" -- you know, the one the Republicans made sure Harriet Miers never received -- and the degree to which the Framers believed the Senate ought to defer to the Executive with regard to a nomination of such importance. Professor Stone pretty much demolishes the conventional wisdom on this one, too, and not by invective, but by simple marshalling of historical facts.

Presidents routinely assert that the Framers gave them the power to appoint justices and that the Senate should therefore defer to them in the absence of extraordinary circumstances. But that isn’t our history. At the Constitutional Convention, the Framers clearly intended the Senate to play an active role in giving its Advice and Consent to judicial nominations. Indeed, until the very last day of the Convention, the Framers had assigned the power to nominate judges to the Senate, rather than the president. They were concerned that an overbearing executive could exercise undue authority if granted carte blanche authority to appoint federal judges, who would then serve for life. It was only on the final day of the Convention that the Framers decided that it would be unwieldy for a multi-member body to make nominations and reluctantly assigned the responsibility of nomination to the president.

That the Senate would play an aggressive role in reviewing judicial nominations was evident from the earliest days of the Republic. George Washington’s nomination of John Rutledge as Chief Justice of the Supreme Court was rejected by the Senate because of opposition to his stance on the Jay Treaty, and during the 19th century the Senate refused to confirm 25% of all Supreme Court nominations. There is nothing at all new about confirmation battles.

Indeed, one might say that Professor Stone has hoisted the GOP on its own originalist petard.

(Hat tip.)