Senator Kennedy Assails Alito and Roberts:

Senator Ted Kennedy (D-MA) did nearly all he could to derail the confirmations of John Roberts and Samuel Alito to the Supreme Court. Having lost those fights, Kennedy is still at it, as evidenced by this Washington Post op-ed alleging that both nominees misled the Senate Judiciary Committee and concealed their judicial philosophies during their respective hearings. This, Kennedy claims, shows that the judicial confirmation process is badly broken.

the careful, bipartisan process of years past -- like so many checks and balances rooted in our Constitution -- has been badly broken by the current Bush administration. The result has been the confirmation of two justices, John G. Roberts Jr. and Samuel A. Alito Jr., whose voting record on the court reflects not the neutral, modest judicial philosophy they promised the Judiciary Committee, but an activist's embrace of the administration's political and ideological agenda.

Yet as my Bench Memos co-blogger Matthew Franck notes, Senator Kennedy misleads his readers through selective quotation and misrepresentation, taking words out of context and (in one instance) altering the language of a Supreme Court opinion to make his point.

If anything, Franck is too easy on Senator Kennedy, highlighting only a handful of his distortions. Setting aside the misquotation of Justice Thomas' Hamdan, Senator Kennedy's essay is exceedingly disingenuous. The hearings were a "sham" because some Republican Senators praised rather than probed the nominees, but not because some Democratic Senators prejudged the nominees, sought to play "gotcha" politics, played to the cameras, and asked misleading questions. Are we to believe that Senator Kennedy cared about the substantive answers to his questions?

Senator Kennedy accuses Justice Alito of a "pattern" of deception, including misleading the committee about his views of criminal procedure.

When questioned, he insisted that one of the judiciary's most important roles "is to stand up and defend the rights of people when they are violated." But Alito cast the deciding vote in Hudson v. Michigan, in which the court decided -- contrary to almost a century of precedent -- that evidence gathered during an unconstitutional search of a suspect's home could be used to convict him.

Whatever one thinks of the merits in Hudson, it is hard to argue that the Scalia majority Alito joined was "contrary to almost a century of precedent." See, for instance, Orin Kerr's analysis here.

In other places, Kennedy combines distortions and disingenuousness at the same time.

In Gonzales v. Oregon, a majority of the Supreme Court held that the Justice Department lacked the power to undermine Oregon's Death With Dignity Act. However, Roberts joined a startling dissent by Justice Antonin Scalia, stating that the administration's actions were "unquestionably permissible" because the federal government can use the Constitution's commerce clause powers "for the purpose of protecting public morality."

Here Kennedy misrepresents the substantive issue in the case, which concerned the interpretation of the Controlled Substances Act, not the scope of federal power under the Commerce Clause. While I disagreed with Justice Scalia's dissent, it was hardly "startling." What is "startling," however, is Senator Kennedy's suggestion that he now believes the federal commerce power is limited (and that such limits should be enforced in federal court).

Senator Kennedy is simply upset that President Bush nominated, and the Senate confirmed, two intelligent, conservative jurists. I don't agree with all of their legal opinions thus far, but it's hard to claim that either Roberts or Alito was unqualified or should not have been confirmed. I also agree with Franck that any criticism of either justice (or, for that matter, any justice) should focus on their judicial philosophy, and not the specific policy results in specific cases.

the senator from Massachusetts provides all the evidence one needs that, for some senators anyway, it is not legal thinking that matters at all. It is only results. From start to finish, this column amounts to one long whine that Chief Justice Roberts and Justice Alito don't share Senator Kennedy's view that Senator Kennedy's policy preferences should be enacted by the Supreme Court. What Kennedy doesn't have is anything resembling a legal argument against a vote cast, or an opinion written or joined, by either of these two justices.

Wittes on Reforming the Confirmation Process:

In contrast to Senator Kennedy's op-ed (which I discuss here), Benjamin Wittes offers a thoughtful essay in today's Washington Post on the judicial confirmation process, based in part on his interview of Chief Justice Roberts. (Interestingly, Senator Kennedy's essay is on the front page of the Post's Outlook section this morning, while Wittes' piece is buried on page 4.) Among other things, Wittes adds some useful historical perspective to the debate over judicial nominations.

As Wittes notes, judicial confirmation hearings have never been about the substance of a nominees views.

If the history of judicial confirmations proves anything, it is that the hearings were never meant to be a thoughtful inquiry into a nominee's judicial philosophy. Rather, their point has always been to wring concessions from would-be jurists or to tar them as unworthy. Since live testimony by nominees became standard after the Supreme Court's 1954 decision striking down segregated public schools, senators have sought to pressure nominees into swearing allegiance to contested ideas, or to make statements that provide ground for opposition.

That is what the hearings still achieve today. They function coercively not because they are failing their intended purpose. Coercion is their intended purpose.

Indeed, the nature of the political process is such that even if a serious probing of a nominee's substantive views were desirable (and I do not believe it is), such a dialogue would not occur in the Senate.

How should the hearings be conducted? Chief Justice Roberts' prescription does not sound so bad.

If there are serious questions about qualifications, senators should explore those. If there are serious questions about ethics, senators should explore those. If there are disputes about appropriate judicial philosophy and approach, talk about those. But barring that . . . everybody doesn't have to think that this is an opportunity for them to be the reincarnation of Clarence Darrow.

Wittes offers an alternative prescription: End nominee testimony.

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?

This is a good idea too, but I would not hold my breath waiting for it to happen.

I have long believed that the Senate should be quite deferential to a President's judicial nominations, should not vote for or against judicial nominees due to their judicial philosophy, and should ensure that all nominees receive a quick up-or-down vote, largely based upon the nominee's record, qualifications, and character. In my view, the relevant "democratic moment" occurs during the Presidential election, but I realize this is anything but a consensus view. I also believe that past Democratic mistreatment or Republican nominees did not justify Republican payback during the Clinton presidency, and Republican malfeasance does not justify Democratic payback since.

However one believes the process should be reformed, there is a window for meaningful reform of the confirmation process. At present, neither party is particularly interested in endorsing "neutral" rules for the process. Senator Leahy, for example, proposed rles for ensuring quick consideration of judicial nominees during the Clinton Administration, but he would not support (let alone sponsor) that legislation today. The only real hope is for a majority of Senators to endorse a set of neutral procedures that will take effect after an intervening election -- preferably one far enough in the future that the outcome is indeterminate (e.g. an agreement in early 2007 to take effect in January 2009). In this way, both parties could endorse the reforms on their merits, rather than on their likely effect on either party's nominees. Similar ideas have been floated in the past, but there have not been many takers in the Senate.

Kennedy Correction:

This morning, the Washington Post appended a correction to Senator Kennedy's op-ed attack against Justice Alito and Chief Justice Roberts.