The Political Parties and the Courts; Democrats Face Huge Challenges

Article excerpt


The decision about who would be named to replace retiring or deceased justices on the U.S. Supreme Court was made on Nov. 2, 2004. Prior to that, in the national elections, the candidates and political parties had been quite specific about what kind of justices they would choose if they were elected. George W. Bush went out of his way to do this, and Democrats reinforced public awareness of this by warning against this outcome. Nevertheless, a majority of voters re-elected President Bush and gave him an increased majority in the Senate, which must approve his judicial choices.

The advise-and-consent clause of the Constitution was clearly intended to be a check or review of presidential nominations. The standard is not only whether there is agreement about a particular nominee's philosophy, but whether a nominee meets the qualifications of office.

It is true that the direction of Supreme Court decisions is now at a turning point. By returning a conservative president and a Republican Senate repeatedly to office, the voters have signaled they want and approve of this change. Public-opinion polls, for whatever they are worth, strongly reinforce this conclusion when questions about critical judicial decisions are posed to voters.

As a political centrist, I likely would not have selected Judge Samuel Alito for the court vacancy if I were president. Almost certainly, no Democratic president would have chosen him. But the choice is not mine, nor is it the Democrats' to make. The initial negative wave from liberal interest groups, and from the most liberal senators, is predictable, but it is not necessarily helpful to their cause.

A similar campaign was intended to thwart the confirmation of now-Chief Justice John Roberts only months ago, but Justice Roberts' character and distinction as a legal mind overwhelmed this intention, and he was easily confirmed. Judge Alito's legal track record is larger than was Justice Roberts', and thus more open to controversy, but barring the very unlikely revelation of some flaw in Judge Alito's public life, his apparent intellectual distinction, character, demeanor and grasp of the law should make his confirmation a formality.

Questions about his legal philosophy may be asked. Questions about how he would decide on specific issues and cases will be appropriately rebuffed, as they have been by all recent nominees to the court made by presidents of both parties. I do not question that these specific issues and cases are what is on the mind of both sides, but I remind that this was already settled in the national election of 2004. …