In today's Washington Post, Sen. Edward Kennedy says that the Senate, and particularly its Judiciary Committee, were deceived by managed testimony in confirming Chief Justice Roberts and Justice Alito.
While I know the Bush administration (and the Republican-controlled Senate) insisted on limiting the testimony, the written opinions of both justices were available for anyone to read -- including senators. Just by looking at some of their past decisions I could have predicted what side they would take in the opinions Kennedy cites -- Alito's joining of the dissent in Hamden v. Rumsfeld, and their agreement in eviscerating the Fourth Amendment in Hudson v. Michigan. In fact, the only Supreme Court ruling that surprised me all year was a unanimous opinion Alito wrote reversing a death penalty case on due process grounds (Holmes v. South Carolina) -- I didn't expect him to ever rule in favor of a convicted defendant.
To be fair to Sen. Kennedy, I know he voted against both of them. And he's right about the changes that should be made to the Senate procedure. He writes:
First, any qualified nominee to the Supreme Court will have spent many years thinking about legal issues. We should require that nominees share that thinking with the Judiciary Committee, and not pretend that such candor is tantamount to prejudging specific cases.And he closes his article with this statement:
But it is essential that we learn enough of their legal views to be certain that they will make good on the simple promise etched in marble outside the Supreme Court: "Equal Justice Under Law."Claiming they were misled by the process is just an excuse being used by Democratic and moderate Republican senators to justify their votes for justices with extreme judicial philosophies. They really voted for them because they were too scared to rock the boat -- the same reason they have supported many other bad Bush administration policies.
The Democrats should have filibustered both nominees. Going along to get along isn't working in the current Senate. In fact, given most of the actions of both houses over the past year, I think we'd be better off with a stalemated Congress.
About the only positive thing Congress has done this year is pass the extension of the Voting Rights Act. And in that case, due to the fact that there were questions about whether it would be extended, no one even tried to expand the law to cover other jurisdictions that have recently demonstrated serious flaws in their electoral process -- Ohio comes immediately to mind. A real Voting Rights Act extension would address current voting problems as well as making sure that the progress made in the South isn't abandoned.