[Supreme Court]

The System's Kind of Broken.

I can't help it--one more post on Alito. But it will be the last (unless ...). Let us begin with a comment the candid and likeable (but dangerously moderate) Joe Biden made about the hearings (via Kash):

"The system's kind of broken. Nominees now, Democrat and Republican nominees, come before the United States Congress and resolve not to let the people know what they think about the important issues. Just go to the Senate floor and debate the nominee's statements instead of this game."

Yes, the system is broken. Fair is fair--Democrats are as responsible for the problem as Republicans (or almost). If you care to wander the road that led to this point, I detailed it last year on BlueOregon. The upshot: the "consent" phase of judicial nominations is a purely political one, and so what we have finally arrived at is politics coreographed to obscure extreme views--beneficial for both parties.

Sam Alito, when he joins the Supreme Court, will be one of the most conservative justices of the modern era. There is no one who does not believe this. But because he didn't say it--because he was polite and cordial and educated and deferential--he'll sail through. The politics of filibustering based on a known but unadmitted fact is politically untenable. Americans have seen the hearings, they've seen the nice man, and absent any vague sense of law, they think he oughta be approved. And so it goes.

EJ Dionne captures it nicely:

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.

For what it's worth, here's a prediction I would love to be wrong about: Alito will join Antonin Scalia and Clarence Thomas as the nucleus of radical judicial activism. They will argue for "orginalist" positions, with which they will justify trying to declare much of the federal government as unconstitutional. This position is so radical that it may not appeal to other conservatives--notably Justice Roberts--so we may have the same 5-4 balance we had with O'Connor and Rehnquist. But maybe not. In any case, we will see that in cases where Alito said he had an "open mind," but which he had previously clearly stated views, that his mind wasn't really all that open. Thomas did the same thing.* You lie your ass off, but so what? It's a lifetime appointment.

And so it goes.
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*As Chuck Schumer noted. He quoted Thomas for Alito during the hearings: "Stare decisis provides continuity to our system. It provides predictability. And in our process of case-by-case decision-making, I think it's a very important and critical concept." Thomas, Schumer noted, has voted more often than any other justice against previous court precedent.