January 13, 2006

"We have to hit him harder."

Said a Democratic senator to E.J. Dionne during the afternoon break of the first day of questioning at the Alito hearings:
The senator was expressing frustration over a process that doesn't work.
Define "work." You mean, doesn't permit you to defeat the President's nominee as long as he is very well qualified and can give reasonably substantial answers to all the many lines of searching inquiry the opposition party has been able to develop?
It turns out that, especially when their party controls the process, Supreme Court nominees can avoid answering any question they don't want to answer. Senators make the process worse with meandering soliloquies. But when the questioning gets pointed, the opposition is immediately accused of scurrilous smears. The result: an exchange of tens of thousands of words signifying, in so many cases, nothing -- as long as the nominee has the discipline to say nothing, over and over and over.
Define "nothing." You mean everything that isn't a pledge to decide cases the way you'd like or to confess to bias and bigotry?
Democrats seem to be wary of mounting a filibuster. What they should insist upon, to use a euphemism Alito might appreciate, is an extended debate in which his evasions will be made perfectly clear to the public. If moderate senators want to vote for a justice highly likely to move the Supreme Court to the right, they can. But their electorates should know that's exactly what they're doing.
Oh yes, extended debate, for the benefit of the public. Because we haven't heard enough verbiage from the Democratic Senators yet.

25 comments:

ALH ipinions said...

Unfortunately, the judicial nomination process has become just another feature of what Vince Foster is reported to have lamented as the Washington habit of destroying people's lives for sport.

Indeed, it is patently clear that this anonymous senator was referrinig to hitting Alito "harder" below the belt; not to challenging his judicial philosophy more aggressively.

And so they did....

In fact, so much so that his wife cried with relief when Sen Graham showed common decency by rescuing this man's name and reputation from aother high-tech lynching by the now thoroughly discredited senate judiciary committee.

LarryK said...

Correct me if I'm wrong, because I haven't actually seen any of the questioning (I do have a day job), but my reading is that Alito has not been evasive in his answers and in fact has provided quite detailed and substantive replies. The Democrats only want to pretend that he's been evasive so they have an excuse to filibuster or, at least, oppose his nomination without being honest about their real reasons for voting against him.

Simon said...

Carefull, Ann - when you're reasonable about these things, Daily Kos assumes you're selling out to the GOP. On the other hand, perhaps its nice that they associate reasonable discourse with the Republican party.

Chris said...

One way that the process is working is that the process is difficult enough to navigate that you need to be Roberts- or Alito-caliber to get through without looking foolish. Had they chosen to, for instance, the Dems could probably have tripped up Harriet Miers. Of course, like a lot of things, when it's working you don't notice it. But the deterrent value of the hearing may well have increased the talent level of the nominee. Of course, that might or might not be a good thing.

Jake said...

All these embarrassing performances would end if the hearings were not televised. Without TV, Kennedy, Biden, Schumer, Leahy and Boxer would not show up for the confirmation hearings. Without them, maybe some fruitful discussions about law would take place.

PD Shaw said...

The process isn't working because the activists are relying on the interrogating skills of old farts whose abilities have clearly atrophied. Ask questions and when you don't like the answer, ask more questions. Follow-up. Don't grandstand. Make the nominee talk.

LarryK said...

Chris - How can increasing "the talent level of the nominee" be anything but a good thing? Maybe you're worried this will keep the mediocre and unimaginative out of positions of power, but if so you're obviously forgetting about Dick Durbin.

michael a litscher said...

Jake: All these embarrassing performances would end if the hearings were not televised. Without TV, Kennedy, Biden, Schumer, Leahy and Boxer would not show up for the confirmation hearings.

"Politics is just show business for ugly people" -- Jay Leno

Some more ugly than others, which was on full cable-televised display during the hearings.

I find it telling that the Democratic Party has Ted Kennedy, of all people, trying to malign Alito's ethics and morals.

michael a litscher said...

Here's another apt quote re. Ted Kennedy:

"Fat, drunk, and stupid is no way to go through life, son." -- Dean Vernon Wormer, "Animal House" (1978)

DCWilly said...

Perhaps my perspective is unique, but I support Alito -- even as a liberal -- because the President should have broad authority to pick whom he wants and Alito is in the mainstream, albeit the conservative mainstream. I support his nomination even while I know that I will be patently opposed to his decisions and on the issues of the day. But that in no way means that his hearing before the Senate was worthwhile, or served any purpose, and I think that is part of Dionne's overall point. Alito purposefully refused to disclose anything about his views, falling back on tautological platitudes (e.g. "No man is above the law" Gee, I wonder if he learned that bit of legal wisdom at Yale or Princeton). If we won't opine on what the law is, why are persisting in conducting a charade? Why not send a wind-up doll up there and press the right button at the right time "No man is above the law." "Supreme Court decisions are entitled to respect"

RogerA said...

I understand the canons of legal ethics forbid a nominee or candidate for judicial office to decline to answer cases upon which they might rule--I know the so-called "Ginsburg" rule keep being cited, but isnt it bit more basic than that?

As to ethical considerations, one of the good questions I did hear from one of the D senators had to do with the fact that (I believe) sitting judges testified on Alito's behalf--could that not be framed as a potential conflict of interest?

I would approciate some thoughts from the legal community on that issue.

Charles said...

Obviously the Democrats are hating establishing the Gingsberg Precedent for nominees. Alito should have answered every substantive question with that in the first sentence, then gone on to teach the Democrat senators why they established that, and why judges are bound not to discuss current or future cases - not to mention if you are to judge the case on its merits and law, you need more detail than washed up senators could ever provide. Or so has been my understanding of the law.

Gerry said...

"As to ethical considerations, one of the good questions I did hear from one of the D senators had to do with the fact that (I believe) sitting judges testified on Alito's behalf--could that not be framed as a potential conflict of interest?"

Let's examine some other potential conflicts of interest.

A nominee will likely have to rule on cases where the foundation of laws crafted by the Senators doing the hearings. This could present a conflict of interest.

In the past, attorneys have testified as legal experts. Many of these were people who could reasonably expect to have cases brought before the Supreme Court. This could present a conflict of interest.

Heck, anyone who could testify could be involved in something that would eventually be brought before the Supreme Court. This could present a conflict of interest.

Becker said...

Frankly, I don't think the problem is necessarily TV. I think it's the quality of the questioners. Kennedy, Schumer, and Durbin in particular don't share the intellectual ability of my big, fat white cat.

The D's could not (or chose not to) make an argument about Alito based on his judicial ability. It's telling that the cases they chose to argue out of the 4,000 or so opinions that he joined in. It's also telling that they could not find ONE person who has actually worked with Alito to testify agaist him.

brando said...
This comment has been removed by a blog administrator.
brando said...

Kennedy, Schumer, and Durbin in particular don't share the intellectual ability of my big, fat white cat.

As opposed to whom? Coburn, Sessions and Hatch? Come on.

While the Democratics can be accused of grandstanding, their colleagues across the aisle have been throwing this guy a tea party.

I'm not sure which is worse.

PD Shaw said...

No, there is no grounds for recusing a Alito because some of his colleagues said some nice things about him. Conflicts arise from a judge's relationship to the parties in a case, not the judge's relationship to the judge(s) being reviewed. We don't usually see the judge being reviewed as having an interest in the case. If we did, there would be a lot of recusals since appellate judges are often pulled from the ranks of the lower courts. Plus, appellate judges sit in panels of three or more judges, which reduces the risk of one judges biases.

The problem, if there is one, is with the testifying judges. Judges are generally not supposed to endorse people for political office (other than themselves) or testify as character witnesses. They are supposed to be above the fray. I am not saying its an ethical violation, but that's the more problematic issue I believe.

RogerA said...

Thank you all who answered my question.

Charlie (Colorado) said...

All these embarrassing performances would end if the hearings were not televised.

I've got to agree ... I don't see any way to stop it, but I don't think televising Congress has turned out to be all that great an idea.

Chris said...

Larry K asks, "How can increasing 'the talent level of the nominee' be anything but a good thing?" If you like the nominee's positions, more talent is obviously better, but people who disagree with the nominee might be happier to have a Justice with less ability to move the Court.

LarryK said...

Chris

Not all people. One of my favorite ex-Senators was Pat Moynihan, even though I disagreed with nearly all of the votes he ultimately cast. Nevertheless, he brought an active intelligence, considerable learning and a broad historical perspective to the Senate that is noticeably lacking in political hacks like, say, Dick Durbin. I would much rather have a very smart liberal like Moynihan than a dull conservative in the Senate, in part because the stupid conservatives let down their side and in the long run do damage to their cause.

SteveR said...

I *think* this is a compliment

http://bench.nationalreview.com/archives/087186.asp

Chris said...

Larry K,
Right. It depends. Someimes more talented opponents will be more dangerous, and sometimes more talented opponents will be more sensitive to things they should be. I'm only saying that sometimes, talent might have a cost, and that such a cost might sometimes be decisive.

Paul said...

During the Clinton impeachment hearings someone, I wish I could remember who, said the Judicary Committees tended to attract to most partisan members of each party. You didn't find the John Breauxs or Evan Bahys but the Chuck Shumers and Henry Hydes.

It is absurd to have Ted Kennedy passing judgement on anyone.

There should also be some threshold of relevance for evidence. Kennedy was reading a letter written by someone to a magazine published by a group Alito was not active in. This pursuit of the sound byte needs to be reigned in. Someone tuning in for a few minutes would have thought Kennedy was reading Alito's words.

Alexandra said...

All Things Beautiful TrackBack Alito's Justice Will Prevail

"We have to hit him harder!" said a Democratic Senator E.J.Dionne expressing frustartion over a system that doesn't work. Ann Althouse quite rightly says:

Define "work." You mean, doesn't permit you to defeat the President's nominee as long as he is very well qualified and can give reasonably substantial answers...."