Excerpted from the WSJ yesterday (I can’t tell whether it is available for free on opinion journal or through my WSJ subscription):
The Roberts-Alito Court
Thank you, Ted Kennedy and Ralph Neas.
Thursday, January 26, 2006 12:01 a.m. EST
With at least 52 Senators already on record in support, it’s clear that–short of some smear ex machina–liberal Democrats can’t stop Samuel Alito from being confirmed to a seat on the Supreme Court. So it’s a good moment to consider what this says about our politics and what it means for the Court as it enters a new era.
One conclusion is that the confirmation of both Chief Justice John Roberts and Judge Alito marks the most important domestic success for President Bush since his 2003 tax cuts. These look like legacy picks. Despite the Harriet Miers misstep, Mr. Bush has now fulfilled one of his campaign promises. And with two distinguished conservative jurists joining Justices Antonin Scalia and Clarence Thomas, the Court is closer than it’s been in 50 years to having a majority that can restore Constitutional interpretation to its founding principles.
In this sense, the Alito-Roberts ascendancy also marks a victory for the generation of legal conservatives who earned their stripes in the Reagan Administration. The two new Justices are both stars of that generation–many others are scattered throughout the lower courts–and they are now poised to influence the law and culture for 20 years or more. All those Federalist Society seminars may have finally paid off. Call it Ed Meese’s revenge.
The Roberts-Alito Court also represents a notable, and greatly satisfying, rebuke for the legal left and its “borking” strategy. They have long thought of the courts as their personal legislature, and they have shown they will do and say anything to keep control of it. But this time they lost, and on their own ideological terms.
Senator Chuck Schumer declared in 2001 that he wanted to turn judicial confirmations into battles over “ideology.” The New York Democrat succeeded in doing so, but he ended up losing in a self-knockout. One reason Democrats couldn’t defeat Chief Justice Roberts or Judge Alito, despite near party-line opposition, is that their filibuster strategy had made judges a top-line election issue in both 2002 and 2004.
The battle over their unprecedented filibuster of 10 appeals-court nominees helped to sweep Democrats out of the Senate in Bush-leaning states and give Republicans a larger majority. The Democrats who remain in red states–five of whom are up for re-election in November–saw all this and had no appetite for a repeat in 2006. The liberal interest groups that devised the filibuster strategy and wrote the anti-Alito talking points for Senators Ted Kennedy and Patrick Leahy thus contributed as much as anyone to Judge Alito’s confirmation. Congratulations, Ralph Neas. It’s your finest hour.
In contrast to the WSJ’s evident glee, the NY Times is “frightened” of Judge Alito and is calling for a filibuster, “Senators in Need of a Spine”:
But portraying the Alito nomination as just another volley in the culture wars vastly underestimates its significance. The judge’s record strongly suggests that he is an eager lieutenant in the ranks of the conservative theorists who ignore our system of checks and balances, elevating the presidency over everything else. He has expressed little enthusiasm for restrictions on presidential power and has espoused the peculiar argument that a president’s intent in signing a bill is just as important as the intent of Congress in writing it. This would be worrisome at any time, but it takes on far more significance now, when the Bush administration seems determined to use the cover of the “war on terror” and presidential privilege to ignore every restraint, from the Constitution to Congressional demands for information.
Judge Alito’s refusal to even pretend to sound like a moderate was telling because it would have cost him so little. Chief Justice John Roberts Jr., who was far more skillful at appearing mainstream at the hearings, has already given indications that whatever he said about the limits of executive power when he was questioned by the Senate has little practical impact on how he will rule now that he has a lifetime appointment.
Senate Democrats, who presented a united front against the nomination of Judge Alito in the Judiciary Committee, seem unwilling to risk the public criticism that might come with a filibuster — particularly since there is very little chance it would work. Judge Alito’s supporters would almost certainly be able to muster the 60 senators necessary to put the nomination to a final vote.
A filibuster is a radical tool. It’s easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.