JURIST Guest Columnist Mark Graber of the University of Maryland School of Law says that the Alito hearings have demonstrated yet again that political polarization has impoverished the judicial confirmation process...
There are no liberal Republicans or conservative Democrats on the Senate Judiciary committee. Senator Arlen Specter remains the only member of the committee who appears at all ambivalent. Remarkably, however, this highly polarized committee celebrates moderation. Although most Republican senators champion constitutional visions similar to those articulated by Justices Scalia and Thomas and most Democrats champion constitutional visions similar to those articulated by Justices Breyer and Ginsberg, Justice Sandra Day O'Connor was the one justice Alito was obligated to praise on Thursday, even though there is no evidence that he or any senator other than Specter shares in O'Connor's constitutional vision or understanding of the judicial function.
The vagarities of the confirmations process have everything to do with the contemporary state of American politics, and little to do with any commitment to constitutional minimalism on the left or the right.
Politics in the United States is presently as polarized as at any previous time in American history. Both parties consistently champion policies preferred by their activist base, rather than those favored by the fictional median voter. Republican platforms call for bans on all abortions. Democrats insist abortion should be legal and almost unregulated. No party and few politicians insist that abortion should be legal and heavily regulated, even though that is the opinion of most Americans. This strategy is often successful in electoral and legislative politics partly because activists contribute more money and participate more in primary elections than other Americans, and partly because the parties are often able to present policies as more centrist than they actually are.
The Supreme Court is the one institution that reaches the centrist position on abortion and on issues as diverse as affirmative action, the death penalty, and federalism. With a majority nominated by a president of one-party and confirmed by a Senate controlled by the other party, the Supreme Court for the past 20 years has had a far greater capacity to articulate moderate positions then the Congress, the White House, or the two major parties. This centrism explains why the public consistently expresses more support for the Supreme Court than any other political institution and why Justice O'Connor is far more popular among the American people than the legal elite. Her efforts to split the difference between contending constitutional visions may not have resulted in brilliant legal opinions admired by named chairs at top 10 law schools, but they reached conclusions supported by the average American.
The challenge for Republican Senators during the Alito hearings has been how to remake the Supreme Court in the image of its activist base while presenting their judicial nominees in the image of Justice O'Connor.
The transcript of Thursday's hearings suggests that, like Judge Alito, Republican senators have no agenda at all other than to place a competent jurist on the supreme federal bench. Several passed on opportunities to ask questions, Senator Sessions devoted some time to recounting when Alito and his sister were debate partners, and Senator Grassley made a speech about the Federal False Claims Act which he then concluded had nothing to do with the confirmation hearing. Confident that Judge Alito is one of their own, conservative Republican felt no need to ask him to articulate and defend his distinctive constitutional vision.
The challenge for Democratic senators is how to maintain the O'Connor Court, given they can expect no better in the present political and legal environment. After spending the first three days focusing on matters that might mobilize their activist base, Democrats on Thursday raised issues aimed at the center. Several suggested that Alito would not rein in the Bush administration on any war on terrorism related policy. Senator Durbin focused on a case where Alito found nothing constitutionally wrong with strip searching a 10-year old girl, and several Democrats continued to question whether Alito should have recused himself in cases involving Vanguard funds in which he had invested. This last matter is typical of political behavior when parties are polarized and fairly evenly divided. As Benjamin Ginsberg and Martin Shefter detail in Politics by Other Means, the best strategy for gaining votes when most people have made up their mind on the issues is to accuse the other side of corruption. Besides, by debating whether Judge Alito is corrupt or has a "judicial temperament," senators from both parties could appeal to the middle without compromising the policies preferred by their activist base.
The "Constitution-in-exile" is being repatriated. The content of this constitutional vision is being determined in private executive sessions in which Democrats are absent and the general public unable to witness. By identifying Judge Alito with Justice O'Connor, conservative Republicans avoid any public discussion about their constitutional vision for the justification for the new, conservative judicial activism. Although Democrats on Thursday pointed out that the Rehnquist Court has declared more federal laws unconstitutional than any previous tribunal, Republicans will continue to score political points by condemning judicial activism while stacking the federal bench with judicial activists of a different bent.
The new Constitution in exile today is championed by liberal constitutional scholars. If yesterday's questions by Democratic senators are any indication, the political version of that "shadow constitution" is both reactionary and impoverished. Liberal Senator after liberal Senator expressed powerful commitments to precedent that if adhered to by Justices in previous cases would have prevented the Supreme Court from handing down the rulings Democrats now insist Judge Alito respect. Once upon a time, liberals talked about labor unions and liberal constitutional theorists talked about welfare rights. Now abortion and vague support for the "little guy" seemed to exhaust the constitutional position of the political left in the Senate.
President Bush and the Senate may be engaged in good politics, but the spectacle they have presented to us is bad constitutionalism. Political coalitions are constitutionally authorized to pack the bench with justices they believe share their constitutional vision. There is nothing wrong with a president declaring that a judicial nominee has been selected because that person will support the constitutional goals of the executive branch. Wide-ranging public debate over constitutional visions is in line with a healthy constitutional policy. This debate is best promoted when presidents articulate their constitutional vision when making judicial nominations and their judicial nominees defend that vision during the confirmation process, while opponents offer alternative vision. We have not had such a debate recently, as the president, senators, and the latest judicial nominees have followed carefully prepared scripts designed to confuse or, perhaps, bore the general public. If Thursday and the entire week are any indication, we are moving toward a confirmation process in which the only question liberal and conservative justices will answer differently is "What is your name?"
Mark Graber is a professor at the University of Maryland School of Law with a joint appointment in the Department of Government and Politics.