A July 30 Outlook article by Sen. Edward M. Kennedy (D-Mass.) incorrectly used the word "accept" rather than "respect" in quoting from a dissenting opinion written by Supreme Court Justice Clarence Thomas and joined by Justice Samuel A. Alito Jr. in the case of Hamdan v. Rumsfeld. The opinion referred to the court's "well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs."
SUPREME COURT CONFIRMATIONS
Roberts and Alito Misled Us
I have had the honor of serving on the Senate Judiciary Committee for 43 years, during which I've participated in confirmation hearings for all the justices who now sit on the Supreme Court. Over that time, my colleagues and I have asked probing questions and listened attentively to substantive responses. Because we were able to learn a great deal about the nominees from those hearings, the Senate has rarely voted along party lines. I voted, for example, for three of President Ronald Reagan's five Supreme Court nominees.
Of course, an examination of a nominee's views may cause the Senate to withhold its consent. That is what happened in 1795 to John Rutledge, who was given a temporary commission as chief justice by President George Washington (while Congress was in recess) and was then rejected by the Senate several months later. In 1970, President Richard M. Nixon's nomination of G. Harrold Carswell was derailed when the Senate learned of his segregationist past. At that time, I explained that "the Constitution makes clear that we are not supposed to be a rubber stamp for White House selections." That was also the Senate's view in 1987, when its rejection of Robert H. Bork's extreme views led to the unanimous confirmation of the more moderate Anthony M. Kennedy. The Senate's constitutional role has helped keep the court in the mainstream of legal thought.
But the careful, bipartisan process of years past -- like so many checks and balances rooted in our Constitution -- has been badly broken by the current Bush administration. The result has been the confirmation of two justices, John G. Roberts Jr. and Samuel A. Alito Jr., whose voting record on the court reflects not the neutral, modest judicial philosophy they promised the Judiciary Committee, but an activist's embrace of the administration's political and ideological agenda.
Now that the votes are in from their first term, we can see plainly the agenda that Roberts and Alito sought to conceal from the committee. Our new justices consistently voted to erode civil liberties, decrease the rights of minorities and limit environmental protections. At the same time, they voted to expand the power of the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed by state law.
The confirmation process became broken because the Bush administration learned the wrong lesson from the failed Bork nomination and decided it could still nominate extremists as long as their views were hidden. To that end, it insisted that the Senate confine its inquiry largely to its nominees' personal qualities.
The administration's tactics succeeded in turning the confirmation hearings for Roberts and Alito into a sham. Many Republican senators used their time to praise, rather than probe, the nominees. Coached by the administration, the nominees declined to answer critical questions. When pressed on issues such as civil rights and executive power, Roberts and Alito responded with earnest assurances that they would not bring an ideological agenda to the bench.
After confirmation, we saw an entirely different Roberts and Alito -- both partisans ready and willing to tilt the court away from the mainstream. They voted together in 91 percent of all cases and 88 percent of non-unanimous cases -- more than any other two justices.
A few examples help illustrate how the confirmation process failed the American people. During Roberts's hearing, I asked him about his statement that a key part of the Voting Rights Act constitutes one of "the most intrusive interferences imaginable by federal courts into state and local processes." In response, he suggested that his words were nothing more than an "effort to articulate the views of the administration . . . for which I worked 23 years ago."
Today -- too late -- it is clear that Roberts's personal view is the same as it was 23 years ago. In League of United Latin American Citizens v. Perry , the Supreme Court held that Texas's 2003 redistricting plan violated the Voting Rights Act by protecting a Republican legislator against a growing Latino population. Roberts reached a different view, concluding that the courts should not have been involved and that it "is a sordid business, this divvying us up by race."
The same Roberts who wished the federal government would leave Texas alone was unconcerned by federal intrusion into Oregon's approach to the issue of assisted suicide. In Gonzales v. Oregon , a majority of the Supreme Court held that the Justice Department lacked the power to undermine Oregon's Death With Dignity Act. However, Roberts joined a startling dissent by Justice Antonin Scalia, stating that the administration's actions were "unquestionably permissible" because the federal government can use the Constitution's commerce clause powers "for the purpose of protecting public morality."
It is difficult to believe that a neutral judicial philosophy explains Roberts's very different views in these two cases. He memorably claimed during the confirmation process that he wanted only to be a diligent umpire, calling balls and strikes without regard to what team was at bat. But it turns out that our new umpires have a keen interest in who wins and who loses.
One clear loser is the environment. In Rapanos v. United States , the court was asked to interpret the definition of wetlands under the Clean Water Act. Four justices deferred to the Army Corps of Engineers' expertise in implementing the statute. But Roberts and Alito joined an opinion that describes wetlands as "transitory puddles" and criticizes their colleagues for "giving that agency more deference than reason permits." For Roberts and Alito, protecting the environment -- unlike "protecting public morality" -- is clearly not a top priority.