As Americans have undoudtedly seen over the past months, and as has been highlighted this week during the hearings currently under way in the Senate, the Supreme Court nomination and confirmation process has, unfortunately, become a caricature of itself.
And while the American people — and the individual who stands as nominee, in this case Judge Samuel Alito Jr. — certainly deserve better from this process, it appears that two dishonest strategies tend to repeat themselves, despite the fact that both have lost even a hint of credibility.
The first strategy, of course, is to disregard a nominee’s overall record, and instead to cherry-pick selectively a number of cases — while completely ignoring numerous others — in an attempt to portray a nominee as one-sided and biased when he or she is indeed evenhanded and fair.
In Judge Alito’s case, this strategy has been applied particularly to his environmental record. Judge Alito has written opinions in six environmental cases, and in five of the six he favored the position of the environmental regulatory agency. Yet the American people have rarely, if ever, heard about those five cases.
However, there appears to be no shortage of available rhetoric about the one case in which he did not side with environmental groups, and, of course, his critics are more than willing to point to the few other cases where he joined opinions by other judges that did not side with environmental groups.
While there are some individuals who feel that any judge who has ever voted even a single time against environmental groups and other liberal constituencies is unfit for the Supreme Court, that is not, fortunately, a view shared by a majority of the American people.
The second strategy, then, has been for “surrogates” — the inside-the-Beltway term for special interest groups, those that do not mind the dirty work and mudslinging so often characterizing these nominations — to call the nominee names, labeling him or her as “extreme” or “radical” and exaggerating his or her views and their implications.
One of the worst possible examples of this strategy played itself out during the nomination of Justice David Souter in 1990. Horrible things were said about this man. The president of the National Organization for Women actually told the United States Senate: “I tremble for this country if you confirm David Souter” because “you are really considering ending freedom for women in this country” and, worse still, should Souter be confirmed, “women will die.”
To charge that “women will die” if a person is confirmed to the Supreme Court is beyond the pale of civil discourse and the respect owed to the president and his nominee. Moreover, it has been proved spectacularly false — as have similar accusations that should Lewis Powell be confirmed in 1971, “justice for women will be ignored,” or that a vote for John Paul Stevens in 1975 would be “a vote to limit the rights of … women to choose whether to have a child.”
While these strategies have been proved both predictable and disingenuous, that does not, unfortunately, mean that some members of the Senate have abandoned them, as the proceedings this week make clear. The National Organization for Women has already released its screed against Judge Alito: “Save women’s lives; vote no on Alito.”
It is becoming increasingly clear that at least 22 senators will vote against Judge Alito — the same number as voted against the nomination of now Chief Justice John Roberts — and this week’s hearings have demonstrated some senators’ attempts to justify these no votes. These attempts have ranged among a number of arguments, from presidential power to the commerce clause to the “right to privacy,” particularly Roe v. Wade, all of which have mischaracterized Judge Alito’s demonstrated performance on the bench.
It is obvious, then, that a small but solid minority in the United States Senate will vote against any nominee of this president, and this minority is willing to create, or accept from outside groups — hook, line, and sinker — some remarkably specious and far-fetched excuses to justify their actions.
It is reasonable to wonder, then, whether the American people have wearied of the predictable politicizing of such a historical event and whether the distortion and posturing has eroded its importance and relevance in the collective public conscience.
In the weeks ahead, let the American people and this fine nominee witness a higher standard of conduct. The United States Senate should consider, in a responsible and expeditious manner, the nomination of Judge Alito, afford him a timely up-or-down vote, and deliver to this country the functioning justice system it deserves.
Cornyn is a member of the Judiciary Committee.