The New York Times editorial page urges the Senate (and in particular Senators Snowe, Collins, and Chafee) to oppose the confirmation of Judge Alito. Nothing noteworthy in that. But I do want to comment on a few of the Times’ more revealing arguments.
The Times contends that only one question matters here — “will replacing Sandra Day O’Connor with Judge Alito be a step forward for the nation or a step backward?” But that question has never been considered dispositive, or even relevant, in the confirmation process. No Republican asked it when considering whether to confirm Justice Ginsburg as a replacement for Justice White. Had Republicans considered this “the only question”, all of them probably would have voted against Ginsburg.
The Times’ new test is not only blatantly opportunistic — focusing not on whether Alito will judge fairly and intelligently, but only on whether he will advance the Times’ policy preferences — but it is foolish. The Republicans have a natural majority in the Senate. Under the Times’ approach, a Democratic president might well find it impossible to confirm a liberal or moderate nominee to replace Justice Scalia.
The Times also offers this statement: “Judge Alito may be a fine man, but he is not the kind of justice the country needs right now.” Overlook the condescending tone. The Times is suggesting that confirmation should depend not only on the political leanings of the Justice being replaced, but also on the current state of national affairs. Surely the Times is being dishonest here. Can anyone imagine a “right now” in which the Times would support Alito? But to even suggest that confirmation should be contingent on the events of the day betrays a fundamental misunderstanding of the Supreme Court and of judging in general. Justices are appointed for life and frequently serve for decades. If a judge actually does hold extreme and incorrect views on core issues like the power of the executive in relation to the power of Congress, then there’s never a right time for him to be placed on the Court.
Ed Whelan has it right — the Times does not deserve to be taken seriously on the topic of Supreme Court nominations.
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