I must simply stop being so shocked by the contents and tenor of the New York Times editorial page; it’s become a parody of itself. Today’s hatchet job is aimed at Samuel Alito in a last-ditch effort to derail his nomination to the Supreme Court:
As senators prepare to vote on the nomination, they should ask themselves only one question: will replacing Sandra Day O'Connor with Judge Alito be a step forward for the nation, or a step backward? Instead of Justice O'Connor's pragmatic centrism, which has kept American law on a steady and well-respected path, Judge Alito is likely to bring a movement conservative's approach to his role and to the Constitution.So, by the Times’ logic, the suitability of the candidate for the Supreme Court depends on the person he/she is replacing. This thin gruel of an argument holds as much weight as the color of Alito’s tie. By advancing the specious “Alito for O’Connor” scenario, the Times attempts to avoid a debate on the criteria by which a Supreme Court justice should be confirmed.
The original benchmark used to be the jurisprudence of a justice. But given Alito’s unanimous “highly recommended” rating by the American Bar Association, along with glowing, bipartisan reviews from his fellow judges, that argument was a dead-end for the Times. Better to move on to ideology and a frightening tale of a “radical” judge scheming “to reduce the rights and liberties of ordinary Americans.” [thunder/lightning flashes] This spurious charge aside, President Bush surely made no secret of his intention to nominate conservative judges to the Supreme Court given the chance. By impugning Judge Alito based on his conservative ideology, the Times is essentially saying that elections don’t matter.
But assume that all the sinister things they say about Judge Alito are true. This raises another question: can we allow such a radical judge sitting on the Third Circuit Court? Why it would be unthinkable! Sure, he was unanimously confirmed to the court fifteen years ago, but now, now!, we know better. Defeat and impeach – Bill Keller would want it that way.
Extra – Similar thoughts on the Times’ insipid editorial from Captain Ed, Rick Moran, and Bench Memos.
3 comments:
So, by the Times’ logic, the suitability of the candidate for the Supreme Court depends on the person he/she is replacing....By advancing the specious “Alito for O’Connor” scenario, the Times attempts to avoid a debate on the criteria by which a Supreme Court justice should be confirmed.
George W. Bush first attempted to replace O'Connor with another woman.
Clarence Thomas replaced Thurgood Marshall.
Welcome to the real world.
Ruth Bader Ginsburg replaced Byron White.
Curiously, there were no howls of "upsetting the ideological balance of the court" from the New York Times back then.
The ideology of the justice a particular nominee will replace shouldn't matter if the process is treated as an intellectual exercise, but politics is all about the real world. You "win" in politics by getting the people on your side. People, by nature, tend to be comfortable with the status quo. Thus, raising the specter of a "radical" shift in the court is one that has resonance with the public. It didn't work with Alito in part because of his intellect and unthreatening demeanor, and also because O'Conner, despite her new status as a liberal saint, wasn't actually that liberal. But that does not mean that the same argument wouldn't have more resonance if the retiring justice was Stevens or Ginsburg. If Scalia retired at the end of this term, and the President nominated Luttig to replace him, republicans would soothe the public by describing him as a status quo pick (in addition to his other virtues), and they would be right to do so. It would be small consolation after a defeated nomination for the defeated party to say that at least they only used the most intellectually consistent arguments.
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