Wednesday, January 11, 2006

Day 1 scoreboard: Alito 1, Dems 0

If first impressions are everything, then Alito is as good as confirmed. Granted, it's only day 1. Still, the Dems will have to do better than they did yesterday. From the Chicago Sun-Times:
If the Democrats seriously wish to secure the rejection of Judge Samuel Alito's nomination to the U.S. Supreme Court, then they made a very bad start with Monday's hearings. Only by making Alito deeply unpopular with the American people will they get their own party and five or six Republicans to join together in filibustering the nomination. But the opening day of the hearings might almost have been designed to arouse popular sympathy for the nominee.


They found his 1985 statement that the Constitution contained no provision guaranteeing a constitutional right to an abortion. It seems, however, that the public does not agree that this is an "extreme" view. After one month of ads denouncing Alito for such abominations, a Washington Post poll showed public support for his nomination had risen from 49 percent to 54 percent.

Several Democrats Monday, including the reliable Sen. Edward Kennedy, seemed on the verge of making an even worse tactical error. They suggested that Alito's respect for executive branch prerogatives would make him too ready to approve wiretapping and other surveillance of terrorists. That shows a deep misreading of U.S. opinion.

Not only do most polls show that a small plurality of Americans favors wiretapping as a tool against terrorism, but even those against do not consider it a wildly extreme position. When the Democrats campaign against Alito on those grounds, they reinforce the public view of themselves as weak on national security.
Having Leaky Leahy ask about how we should protect terrorists' rights right off the bat doesn't help the Dems much on that pesky national defense image problem of theirs, either. Continuing:
Unfortunately for the Democrats, they cannot restrain their own partisanship. They know the stakes are high. If Alito is confirmed, the Democrats will finally lose their majority on the Supreme Court that for 50 years has allowed liberals to legislate from the bench on everything from racial preferences to the detention of terrorists.
It's common knowledge that the single most important reason that the left fights for the judiciary is that liberal judicial activists advance their unpopular and unwanted agenda on the public through court rulings not based on laws, because the left can't get their agenda passed at the ballot box through elected leaders (accountable to the general public).

Some conservatives -- William Rehnquist in later years -- are prepared to let bygones be bygones. They apply strict judicial construction to future cases, but they will respect the precedents of the last 50 years even when they believe those cases to have been wrongly decided. Others -- Justice Scalia springs to mind -- are prepared to overturn at least the more egregious judicial errors of recent years when either the Constitution or statute law points plainly to a different verdict.


Judicial errors should not be permanently protected by precedent against correction. Wherever possible, the Supreme Court should hand back such still controversial questions to the legislatures and the voters. Where not, they should sometimes reverse their initial mis-judgment.
Personally, I think prior Supreme Court rulings are great, but should not be the "end all - be all", and that prior rulings can and should be overturned. Plessy vs. Ferguson (separate but equal schools are a-OK!) was overturned by Brown v. Board of Education ("separate educational facilities are inherently unequal"). Bowers v. Hardwick (criminzalized sodomy between consenting adults) was overturned by Lawrence v. Texas. So if a SCOTUS ruling is based on a poorly (intentional or not) interpreted reading of law and/or the Constitution, it is imperative that the bad ruling be overturned as soon as possible. Whether Alito agrees with that still remains to be seen.