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August 01, 2006

From The Belly Of The Whale

kennedy.jpg Well folks, it's official. Once more the august senior Senator from Massachusetts hath opened wide his stately blowhole and from it issued forth such glowing pearls of wisdom as would well adorn a dusky Ethiop's ear. In truth, his constituents are well served.

We often wonder, do they tag-team each other (Senators Kerry and Kennedy, we mean)? For it often seems each new day brings a feat of verbal prestidigitation to amaze and confuse a spellbound nation. Why only last week we were stunned to learn that Senator Kerry could, single-handedly, have prevented Hezbollah from attacking Israel. But if we thought that was a shocker, this week's Bay State revelation is guaranteed to knock America's socks off.

Not only were the SCOTUS confirmation hearings divisive, boring, and an utter waste of time, but radically out of the mainstream nominees John Roberts and Sam Alito were lying liars who lie!

Now that the votes are in from their first term, we can see plainly the agenda that Roberts and Alito sought to conceal from the committee. Our new justices consistently voted to erode civil liberties, decrease the rights of minorities and limit environmental protections. At the same time, they voted to expand the power of the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed by state law.

The confirmation process became broken because the Bush administration learned the wrong lesson from the failed Bork nomination and decided it could still nominate extremists as long as their views were hidden. To that end, it insisted that the Senate confine its inquiry largely to its nominees' personal qualities.

The good citizens of Massachussetts must be proud to know their elected Senators - both from the Party of Disunity - speak with One Voice on the important issue of respecting the rules: both supported the practice before they were against it. Back when Thurgood Marshall ran the same gauntlet, Senator Kennedy thought it clearly inappropriate for a nominee to comment on cases that might come before him:

"We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters, which are either before the court or very likely to be before the court," Kennedy said during a 1967 press conference. "This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent."

Precedent, VC readers no doubt remember, is a word which came to be imbued with almost Otherworldy significance during the Roberts and Alito hearings. There was precedent, super-precedent, and even super-duper, cruelty-free precedent! (now with 20% more in every package). Democrat Senators were seen to perform the Thousand Prostrations at the mere mention of the exalted term, while conservatives in seedy watering holes all over this great nation killed off untold numbers of little grey cells when the play-at-home CSPAN Precedent Red State Drinking Game caught on like wild fire.

Now, of course, Ted Kennedy (whom VC readers no doubt recall solidly supported the Roberts nomination from Day One) has buyers' remorse. How could he have been so naive about these dangerously out of the mainstream candidates? All he wanted was to bury the hatchet.

Jeffrey Lord fondly remembers the stately Senator's stalwart efforts to mend bitter partisan divisions:

As documented in my book, it was you who delayed Judge Bork's hearing for a record breaking 77 days. Up until this point the average was 14 days. You launched this attack on checks and balances for one reason, which you later admitted to the Boston Globe: to galvanize dozens of liberal special groups so they could induce political mass hysteria designed to slander a heretofore universally well-respected man of considerable legal intellect. You are the one responsible for the first TV attack ad on a sitting federal judge and Supreme Court nominee. You are the one who created the circus-like atmosphere behind Court nominations, allowing an atmosphere where confidential FBI reports with unsubstantiated charges are leaked to favored liberal reporters. You are the one who created the notion that any nominee who once disagreed with a liberal is "out of the mainstream." You are the one who has allowed these very special interest groups to literally write the questions you and your Democratic colleagues ask or write so ostentatiously to nominees.

Stop here for a moment on this point of questions to nominees. Does it ever strike even a chord of sensibility with you that there's something wrong when one of your Democratic Committee colleagues -- Senator Russell Feingold -- submits 28 written questions to a nominee (Third Circuit nominee Smith), and it is later discovered that of those questions all but seven were supplied by two interest groups, sometimes word-for-word? You yourself submitted five questions through the formal system -- and three of those were traced back to the same interest groups. Suffice to say, you and Senator Feingold were not alone in this corruption of process, either. Literally, the nominee's law clerk had to inquire whether the Judge's answers should be sent to the "Senator" over whose signature the questions were sent or just sent to the head of the interest groups who were really the source of the questions.

The Founders intended SCOTUS to be above politics insofar as possible. This is why Supreme Court justices are appointed, not elected; and why they were given lifetime terms of office. The kind of shameless opinion shopping indulged in by the Senate was not only not desired by the Founders, but an evil they manifestly wished to avoid. Matthew Frank points out several of the inaccuracies in Senator Kennedy's shameful excuse for an Op-Ed, one of which (his misquote of Alito's "accept" vs. "respect" has already, we note, been corrected in today's online version of the article).

I have written before about the role of transparency in government. My personal belief is that, while some transparency is obviously needed the current emphasis on complete openness is not only misguided but actively harmful. There is a very real tradeoff between openness and efficiency, and malicious actors often insist on complete transparency as a means to impede efficient government and undermine their opponents. The real goal should not be complete transparency, but adherence to some objective standard of process that is in itself transparent and representative in nature.

It is obviously impractical for every Tom, Dick, and Harry to have his or her finger intimately involved in the inner workings of government. Nothing would ever get done. And for either the press or public servants to imply that any hint of secrecy or confidentiality amounts to de facto evidence of wrongdoing is simply shameless. Yet this happens every day. In a far better written essay the WaPo managed to bury in the B section of Sunday's paper, Benjamim Wittes argues that though the confirmation process is indeed broken, both sides are distorting the picture:

In conservative mythology, fierce, ideological Supreme Court confirmation battles began with Robert H. Bork's nomination in 1987 -- before which the Senate considered nominees with minimal regard for politics. In liberal lore, the issue is not the confirmation process but the right-wing packing of the courts by Republican presidents; liberal senators must become more aggressive as conservatives threaten a judicial takeover. Many liberals also complain that nominees can easily disguise their real views during their hearings.

Neither story line rings true. Certainly, the confirmation process has changed dramatically over the past half-century. Confirming judges, particularly for lower courts, now takes much longer, and party-line votes on nominees have become common. Presidents cannot even fill routine court vacancies without long fights.

But this evolution began long before the Bork hearings. In truth, there was no Golden Age in which senators evaluated nominees purely on their merits.

I'm not sure things are quite as evenly distributed as Mr. Wittes makes out, but he makes a good point. He wonders what would happen if we put an end to the televised hearings?

It would accomplish only one thing: It would remove that one televised moment when senators name the price of their votes. It would, in other words, remove what Sen. Joseph R. Biden Jr. (D-Del.) incorrectly called during the Alito hearings that "one democratic moment . . . before a lifetime of judicial independence when the people of the United States are entitled to know as much as we can about the person that we're about to entrust with safeguarding our future and the future of our kids."

The democratic moment is not the interrogation of the nominee. It is the point at which the people's representatives debate the nominee's record and cast their votes. Ironically, the hearings only obscure that moment. Many viewers probably remember Alito and Roberts demurring on how they would vote on abortion. But how many remember what a single senator said during the floor debate over either of them?

Why have judicial nominations become so tendentious? I think the answer depends on two concepts which are distinctly different, but became intertwined in people's minds: transparency and accountability.

As Bashman points out, of all the branches of government the judiciary, especially at the appellate level, is perhaps the most transparent branch:

The judicial branch, at least at the appellate level, has the potential to be the most open to public scrutiny of the three branches of the federal government. Not only do appellate judges have a practice of explaining in writing the reasons for their rulings in opinions that are widely available and open to public scrutiny, but increasingly the legal briefs that the parties file on appeal and the audio or written transcript of appellate oral arguments are also freely available online.

With the exception of private communications between appellate court judges as they work to decide pending cases, the rest of the federal appellate court process is increasingly conducted in a manner that is wide open to the public.

By contrast, no one reasonably expects President Bush to conduct his duties as chief executive in a manner that is open to public scrutiny at all times, nor is the president required to give public explanations for his decisions in heading the executive branch of government. And while the U.S. House and Senate do conduct most of their hearings and floor proceedings before the cameras, there is no public record of all the information that may influence legislators in how to cast their votes, nor are legislators obliged to explain why they are voting a certain way on any given matter.

But though the decisions of the federal appellate judiciary are transparent, the judiciary themselves are not terribly accountable to the public they serve, are they? Though in theory they may be removed from the bench for cause, how often does this happen in practice? When was the last time a sitting Supreme Court justice was removed? And unlike legislators or elected officers of the executive branch, they hold their offices for life rather than for an agreed-upon term. This, I suspect, is in large part why we scrutinize their records and their character so carefully during the nomination hearings.

Another reason for the politicization of judicial nomination hearings is the federalization of law. Now that the states have been effectively taken out of the federal equation, the choice of federal judges is an ever more pressing question. Law is, increasingly, a judge-made proposition. Judicial activism matters when judges begin to conjure rights out of thin air without consulting the people, or when the Constitution is effectively amended without resort to popular referendum. Judicial activism matters when the Commerce Clause is recklessly expanded to make every aspect of American life subject to federal oversight, for it is now nine unelected and unaccountable 'public servants' who make potentially far reaching decisions on our behalf. In this context, it is hardly surprising that Senator Kennedy is worried, yet it is his own party that has given away the keys to the candy store. The real irony is that he is taking issue with two nominees who favor judicial restraint.

Senator Kennedy complains that he and other Senators were misled, yet from the very beginning he maintained that if confirmed Justices Roberts and Alito would turn back the clock on over thirty years of liberal jurisprudence. Interestingly enough, under Chief Justice Roberts, 40% of the Court's opinions were unanimous, as opposed to only 30% last year and there were fewer close (5-4) decisions. This is hardly what we should expect from a court voting along rigid ideological lines.

It will be interesting, should a Democratic administration be elected in 2008, to see whether Senator Kennedy is willing to see a liberal nominee subjected to the same grilling. I rather suspect that, should that glorious day ever come, he will magically reaffirm the value of precedent and suddenly recall his long-ago words from 1967. The real irony is that history shows not even the nominees know how they will rule on future cases.

Over time, Supreme Court justices tend to develop their own unique philosophy and that is something not even they can accurately predict during the hearings - even to ward off another majestic fulmanation from the stately blowhole of the senior senator from Massachussets.

Posted by Cassandra at August 1, 2006 07:25 AM


Damn, you can type!

The Senators from Massachusetts are an embarrassment to their constituents...who continue to re-elect them, for some esoteric reason.

Posted by: camojack at August 1, 2006 10:14 AM

idunno about you but I'm jonesing for a caption contest so here goes my caption for the included pic:

"Would you PLEASE S.T.F.U.!!"

also fitting of the pic

"Who farted?"

sorry guys, needed a little humor injection there :)

hope you don't mind

Posted by: ChatterBox at August 1, 2006 10:22 AM

They for precedent before they were against it.
That is double speak for 'It's My Party And We'll Cry If We Want To...' to use precedent when it suits them and when it doesn't to blithely disregard it.

Posted by: Cricket at August 1, 2006 10:32 AM

"When was the last time a sitting Supreme Court justice was removed?"

Well, most think that the way Justice Thomas stares at the ceiling during oral argument and never asks a single question makes him appear removed from the proceedings.

Other than that, the only Justice ever impeached was Samuel Chase in 1805 (for political bias). The Senate cleared him and he died on the Court.
At which point they removed him.

Posted by: spd rdr at August 1, 2006 01:09 PM

Ah the Great Bay State--represented by Tweedledee and Tweedledumber. One will save you from Hezbollah and the other can't save you from drowning. Why do they keep reelecting these clowns?

Posted by: Mike Myers at August 1, 2006 01:53 PM

mr rdr:

Everyone knows the reason Thomas is staring at the ceiling during oral arguments is that he is secretly planning the next clandesting meeting of the Constitution in Exile Club, complete with goats, naked chorus girls and a full reading of Article II backwards.

Posted by: Cassandra at August 1, 2006 04:37 PM

Thomas is channeling Uncle Tom for instructions.

Ginsburg long ago misunderstood her career path adviser. Instead of sleeping her way to the top she thought she was to sleep away at the top.

Ruth has health issues. I wish her well.

Posted by: K at August 1, 2006 07:23 PM

Our new justices consistently voted to erode civil liberties, decrease the rights of minorities and limit environmental protections. At the same time, they voted to expand the power of the president

Sounds like some people are positioning themselves for another go soon...

Interestingly enough, under Chief Justice Roberts, 40% of the Court's opinions were unanimous, as opposed to only 30% last year

That just proves how bad it is!!! These evil men now have the whole court in their grip!

Posted by: tee bee at August 1, 2006 08:17 PM

40% unanimity? That dang Dread Justice Roberts and his Iocaine Powder infested Kool-Aid...

Posted by: Cricket at August 1, 2006 08:36 PM

When I returned Mary Jo and the car were gone....hiccup...

I will never have to say any more than that...

Posted by: Dr. Harden Stuhl at August 1, 2006 10:53 PM

Anyone who can get an out-loud laugh out of me at 11 at night deserves a beer, Harden.

Have one on me :)

Posted by: Cassandra at August 1, 2006 11:07 PM

Die you rat bastid, die.

See yourself what you put Mary Jo through.

Lower than whale guano at the bottom of the Mariana Trench.

Posted by: Purple with rage at August 2, 2006 12:49 AM

I believe the value of Senator Kennedy's contributions would be much greater if he'd provide a streaming report of his Breath-O-Lysor (sp?) results.We must have the technology (if not, Gore could invent it) to put a recptor on the mike in front of Teddy. The receptor would constanly monitor the amount of alcohol in his breath, convert that to a blood/alcohol level reading that would be displayed on device in front of him. It would look that the MPH reading on one of those automatic traffic monitoring gizmos.
Understanding Kennedy would be so much easier if we knew how drunk he was as he spoke them.

Posted by: Marrty at August 2, 2006 04:10 PM

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