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Monday, January 16, 2006
 
THOUGHTS ON THE ALITO HEARINGS…
After a couple of other things….


Sometimes there is so much going on that we bloggers devoted to more or less daily commentary on the passing parade have a difficult time deciding on what to comment - and this is one of those days.

A couple of things are stuck in my craw that I may elaborate on at some later date. One is the kid in Florida who came to school with a pellet gun made to look like a real gun and threatened to shoot fellow students and teachers. He also was making noise about wanting to die. Obviously a sick kid. Now a dead kid after being shot by a SWAT team.

I know that after past incidents where disturbed kids have actually killed people at school, police don’t want to take any chances. But this kid hadn’t killed anyone and even though he was brandishing what they thought was a real gun, you’d think that there would be people on police forces trained to find ways to remove the potential danger by methods other than deadly fire. It sickens me every time things like this happen.

Another annoyance was the non news "news" report about the raid in Pakistan that "may" have killed Osama Bin Laden’s number two man Ayman Al Zawahri. Remember the raids in Iraq that may have killed Saddam Hussein but did kill innocent civilians? That’s what happened in Pakistan and it’s small wonder that Pakistanis are furious with us. It’s bad enough that we caused the deaths of so many people without harming the terrorist target - but why on earth report the effort so blazingly if you’re not sure it was successful? Of course the story had to come out eventually - but for it to be reported as it was - that Zawahri may have been killed without knowing if it was true and before we knew what other deaths we had caused was, in my opinion, a premature and irresponsible release of information by authorities and irresponsible reporting by our news media. A "may of" isn’t a front page or lead TV news story and you would think the news media would have come to that conclusion after the debacles of a similar nature in Iraq.

Having got those items out of the way, let me say a few things about last week’s Alito hearings. As I said the other day, the whole thing was a charade - a political charade - with the Republicans committed to vote for their brother ideologist and the Democrats committed to proving that - or at least to trying to find out - if Alito’s politics dictate his judicial decisions.

The Democrats did a lousy job. They came across as a group of attack hounds, making long speeches and lacing their questions with accusations which made the judge look like a sympathetic figure. On the CAP issue for example, where Alito was obviously being less than honest. He "remembered" enough about his membership to put it on his application for a job with the Reagan administration and saying that he was proud of that membership - but at the hearings couldn’t remember a thing about it.

But still, it isn’t helpful to ask a question by saying something like "how could you have joined an outfit devoted to lynching blacks and sending Jews to gas chambers?" No, no one asked a question like that, but they did ask questions that began with an accusation. If they were skilled questioners - and some are lawyers - what’s wrong with simply asking "could you tell us why you joined CAP?" Or "could you tell us why you said that you were proud to have belonged to this organization on your application for a job with the Reagan administration?" And then proceed from there to bring out what you want to bring out. Not sounding like you’ve made up your mind about his answer before you hear it.

Here’s a couple of conclusions about the hearings. The Alito who appeared before the committee bore little resemblance to the Alito who had existed up to the moment he was selected by Bush to replace Justice O’Connor. Why the Democrats weren’t able to make that crystal clear is beyond me. On the abortion issue for example, his views have been stated unequivocally, but at the hearing he was allowed to get away with saying that he would view the issue with an "open mind" if it came before the Supreme Court. A mind that has been closed on the issue throughout his legal career including his fifteen years on the appeals bench - is suddenly open. At least long enough to avoid a filibuster. Disingenuous to say the least.

About the man himself. Bland. The quintessence of blandness. If he is passionate about the law, he certainly didn’t reveal that quality at the hearings. If he smiled or frowned at any time, it must have been at a moment when I looked away from watching the taped broadcasts of the hearings on CNN. I was reminded of the Bush-Kerry debates after the first debate. The Bush handler’s had him programmed to show no negative emotions. No anger. No disgust. No looks that said "You don’t know what you’re talking about you Eastern liberal idiot." And it worked for him as it did for Alito. But what struck me as something that must have bothered at least sone of the Senators was his sameness of dispassionate approach to the law whether the case involved petty theft or the death penalty. I could visualize this guy considering an appeal from a death sentence where evidence of innocence had arisen - and confirming the sentence because proper legal procedures had been adhered to by the prosecutors from arraignment through trial and all subsequent issues before the court. A little like the judge in California who has rejected an appeal to spare a 76 year old, blind, wheelchair bound inmate from being put to death tonight. His lawyers contended that it would violate the constitutional ban against cruel and unusual punishment to execute someone this old and in this condition but the Judge said that such an argument has no relevance from a legal point of view.

I suppose it doesn’t, but wouldn’t you want a judge on the bench who would at least concede that it had some kind of relevance worth considering even if wasn’t from a "legal point of view?"

Another thing that bothered me about the hearings was that there was no real discussion of what it meant - from Alito’s point of view - to be a "conservative" as a judge. Obviously, he is a conservative Republican and was picked for that reason and not just or necessarily for his conservative interpretation of the law - if there is such a thing. I prefer to think of it as bias founded upon one’s political beliefs rather than a reading of the law that automatically differs from that of a "liberal" judge. I am reasonably sure that there are politically Democratic judges on the Federal bench whose "conservative" approach to judicial decisions could match those of many politically Republican judges - but Mr. Bush would never consider nominating a (shudder) Democrat to the high court!!

Finally, I was surprised and concerned that the Democrats didn’t make it clear during the hearings that President Bush did not consult with them before Alito was nominated - as contrasted with President Clinton who cleared his selections for the Supreme Court with Senators from both sides of the aisle - which may have been the reason why they sailed through the Senate with overwhelming approval - as Republicans keep pointing out when calling Democratic reluctance to do the same with the Bush nominees as "obstructionist" or "politics as usual."

It seems to me that if both branches of government - the Executive and the Legislative - want to keep this country on an even keel and represent the interests of all the people all - or at least most of the time, the business of nominating a judge for a seat on the Supreme Court would always follow the Clinton example and bring a nominee before the Senate Committee on the Judiciary who is completely acceptable to the majority and the minority - no matter which party occupies either position. The nomination would then come out of committee with a unanimous aye vote and most likely receive almost unanimous affirmation by the full Senate. And we’d have a judge whose decisions we couldn’t predict in advance because of his political beliefs.

But of course that would require a President who is a uniter - not a divider.