Back in 1987, Sen. Ted Kennedy led the lie and smear campaign against Judge Robert Bork
and at the same time supported the nomination of Judge Antonin Scalia. Both men had virtually identical voting
records. The difference, according to author Thomas Sowell, is that Scalia's vote came up first. Thus, Bork was
considered a swing vote, not simply a replacement vote. Had the gentlemen been considered in reverse order, they
would have been treated in opposite fashion and we would have "Scaliaing" instead of "Borking"
as a term of art all these years. Whatever we call it, this time around it appeared to be shopworn and tatty.
Having blundered severely during the hearings, Senate Democrats flailed about looking for a reason to vote "no"
against a decent man and an extraordinary jurist with a broad spectrum of support. The real reason to vote no,
of course, is that Alito isn't one of them. He was nominated by George W. Bush.
Patrick Leahy (D-VT) finally gave cover to his colleagues by stating on Thursday that he planned to vote no because
Alito would not be an effective opponent to President Bush.
That is to say, based on the testimony given, Alito agreed that the Constitution said that the elected President
should be able to direct the permanent bureaucracy and not the other way around. He also seemed to think that important
decisions were to be made by the elected representatives of the people and not by five untouchable black-robed
oligarchs.
Such views strike at the very heart of Leftist fears - the people will vote for something other that what the Left
thinks is good for them.
Scaring voters about "abortion rights" has been a tactic of the Left for decades. They used the "swing
vote" tactic on John Paul Stevens, Anthony Kennedy, David Souter and John Roberts before Alito. It was again
not effective with the general public.
With the advances in science and technology, the inability of the media to control the daily news cycle any longer
and the advent of the personalizing Internet, the ground under the absolutist pro-abortion stand is shifting. Reports
issued this week by the Alan Guttmacher Institute concluded that of the 100 new state laws related to sexual and
reproductive health issues, some 52 of them restricted access to abortion. Public opinion has moved away from the
absolutist stance to one where the state has a role in cases involving children who are pregnant or when a viable
fetus is present.
Apart from being disgusting and stupid, the hearings produced fresh insights on what the Left is like and how they
treat those with whom they disagree. Their principle hope is to demonize and destroy the representatives of their
opposition. One underlying reason is to demonstrate to the young and ambitious that success only comes from adhering
to the Left's desires. Disagreement will cause pain.
The Left has to object quickly and loudly less the public becomes really aware of a party that advocates for higher
taxes, bigger government, a weak military, losing wars, a shackled economy, unfettered abortion and suicide, sexual
license, tightly restricted law enforcement, leniency for criminals, wide open borders and more everyday regulation.
Since a program such as theirs would never be enacted by free U.S. legislatures, the Left depends on tenure and
control of the judicial system to create and enforce what it cannot obtain through elections.
The irony of the "swing vote" tactic is that Sam Alito is not the swing vote, Anthony Kennedy is. Kennedy
is the appointee who finally took the seat that Bork would have occupied.
For awhile at least, the Court will tend to move somewhat to the left, not the right. What will determine the immediate
direction of the court is the health and fortitude of John Paul Stevens, David Souter, Ruth Bader Ginsburg and
Stephen Breyer. Nothing seals the deal for conservatives unless Bush has one more appointment from liberal ranks
during the next three years. Nothing dooms the liberal prospect like two appointments before 2008.
Given the power of incumbency, the current betting is that absent something big, the Democrats pick up a handful
of net seats in both House and Senate but not enough to control either body.
Guessing who will do what is futility times ten. Case by case, SCOTUS has shifted according to the whims and feelings
of any five members. Court watcher Dahlia Lithwick notes that O'Connor and Kennedy are very different. O'Connor's
opinions were generally case-by-case and narrow in scope. Her opponents disliked her issue-by-issue and her advocates
applauded her issue-by-issue.
Kennedy, on the other hand, likes to think grandly and write sweepingly. He supplied the vote for Kelso-
the private property case that allows government to deprive individuals of real estate if another individual would
use the property to generate higher tax revenue. Already, this pernicious doctrine has pushed eminent domain into
a new dimension - local governments managing their districts to maximize tax revenue.
The small, tax-exempt Centennial Baptist Church of Sand Springs, Oklahoma is already being evicted to make way
for a shopping center anchored by Home Depot. However, two tax-paying businesses nearby are not being evicted,
according to reporter Heather Wilhelm.
Kennedy is also the justice who has the most fascination with using foreign law instead of the Constitution to
guide his decisions. He says that he wants to increase foreign respect for the court as part of his vision of a
pre-eminent position in government.
Pundit Hugh Hewitt has assembled a table illustrating what the establishment thinks will be the makeup of the court.
A few definitions are in order.
- Theist. Those who believe there is a God who is not indifferent to the actions of human beings.
- Secularist. Those who believe that the existence of such a God is unknowable.
- Constitutional Majoritarians. Those who believe in checks and balances and the separation of powers
but also believe that majorities of citizens working through their elected representatives must ultimately control
the direction of the country.
- Elitist Countermajoritarians. Those who believe that no matter what current popular opinion expressed
through legislatures want, there are certain policy choices that must be imposed on the country even if there is
no backing for them.
Therefore, the establishment view of the new Supreme Court is:
Theists Secularists
Constitutional Scalia (Rehnquist)
Majoritarians Thomas (O'Connor)
Roberts
Alito
Elitist, Anti- Kennedy Stevens
Majoritarians Souter
Breyer
Ginsburg
Thus, the fears of the Democrats and the Left are not just losing their last bastion of power through Bush appointments;
it is also their fear of being totally and completely routed when it comes to persuasive argument filtering through
the entire court system. Hewitt concludes that if the world is, in fact, changing, then people who want to make
policy will have to win elections.
