What the Democrats Fear

Source: http://www.nysun.com/article/25924

New York Sun Staff Editorial
January 16, 2006

The news from Capitol Hill this week will be the vote that doesn't take place. Democrats on the Senate Judiciary Committee will delay by up to a week action on Judge Samuel Alito's nomination to the Supreme Court, though the consensus, at least at the moment, seems to be that the Democrats will fail to block Judge Alito's confirmation.

That hasn't stopped them from trying, as they grilled Judge Alito for hours on end and even made his wife cry. Thanks to their efforts, we now know a lot more than we did before. Not about Judge Alito, whose judicial philosophy wasn't any great mystery after his 15 years riding the Third Circuit, but about the Democrats themselves. Now we know what they're afraid of.

The Democrats, at least those on the committee, are afraid of voters. They're afraid of the elected representatives of those voters. They're afraid of a judge who will take seriously the fact that the executive and legislative branches are equal to the judiciary.

Consider the "damning" exchanges between Democratic senators and Judge Alito, compiled into a press release by Democratic staffers to show why Democrats are so "concerned" about this nomination. The transcripts are supposed to show unresponsiveness. But something quite different emerges on closer inspection.

Asked by Senator Leahy about the president's power to authorize torture despite congressional objections, Judge Alito declined to comment on specifics since such a case might soon come before him if he's confirmed. But he did aver that "the President has to follow the Constitution and the laws, and it is up to Congress to exercise its legislative power." In other words, his starting point in such a case would be the actual texts of a Constitution and laws ratified by voters or their elected representatives. He would not fabricate a solution.

When asked by Senator Kennedy how he would use a law's "legislative history" in interpreting it, Judge Alito expressed his preference to stick, when possible, to the text of a statute itself. Only then, he said, would he look to the legislative history or a president's signing statement for interpretative clues. Which means Judge Alito's first instinct is to focus on a law that has actually survived a vote in Congress and not on the Congressional Record.

This is no small matter since minority party staffers, interest groups, and lobbyists - including Jack Abramoff - have made an art of persuading individual members to insert material in the record precisely in the hopes that the courts will one day exploit such miscellany to excuse wacky legal interpretations that would not otherwise be supported by a law's text.

Judge Alito's answers evinced a pattern. On the president's war powers: "The President is Commander in Chief, and he has authority in the area of foreign affairs, and is recognized in Supreme Court decisions as the sole organ of the country in conducting foreign affairs." On term limits for federal judges: "I'm not really sure. I understand the arguments in favor of doing both of those things. And state courts do that."

Even on interpreting the Fourteenth Amendment's citizenship clause as it relates to whether Congress can abolish birthright citizenship: "There are proposals to do that. I know that it's an issue that is in play. And if it were to come before me, then I would have to go through the whole judicial process."

All of which suggests that this careful judge, whom the Democrats accuse of being "out of the mainstream of America," would be inclined to defer to the elected branches, which actually measure where that "mainstream" flows. And that, as best as we can figure, is of what Senator Schumer and his colleagues are afraid.

Since 1994, successive elections have shown that the mainstream is shifting away from their far-left liberalism and toward a moderation that leaves partisans on both sides unhappy. On abortion, a signature liberal issue, voters have elected a Congress that supported a ban on partial-birth abortion but not other types, and eventually elected a president who signed such a ban. They have re-elected a Republican president who takes an assertive view of his powers in war, but a Congress in which members of the president's own party have on occasion declined to ratify all of those powers. Judge Alito appears willing to allow the elected branches the latitude to make those compromises.

For the Democrats, the courts have become the last venue in which they can advance an agenda despite the voters. Democrats have not controlled the House since 1995. They have not been able to keep control of the Senate through an election in the same span. Their presidential candidates have failed to win support from more than half the popular vote for two cycles in a row now. The Supreme Court is all they have left, and now a president is exercising his constitutional powers to appoint a justice who happens to think that the will of the voters matters. That is what the Democrats are afraid of as Judge Alito's confirmation heads toward the floor.