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Senator Kennedy Assails Alito and Roberts:

Senator Ted Kennedy (D-MA) did nearly all he could to derail the confirmations of John Roberts and Samuel Alito to the Supreme Court. Having lost those fights, Kennedy is still at it, as evidenced by this Washington Post op-ed alleging that both nominees misled the Senate Judiciary Committee and concealed their judicial philosophies during their respective hearings. This, Kennedy claims, shows that the judicial confirmation process is badly broken.

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.
Yet as my Bench Memos co-blogger Matthew Franck notes, Senator Kennedy misleads his readers through selective quotation and misrepresentation, taking words out of context and (in one instance) altering the language of a Supreme Court opinion to make his point.

If anything, Franck is too easy on Senator Kennedy, highlighting only a handful of his distortions. Setting aside the misquotation of Justice Thomas' Hamdan, Senator Kennedy's essay is exceedingly disingenuous. The hearings were a "sham" because some Republican Senators praised rather than probed the nominees, but not because some Democratic Senators prejudged the nominees, sought to play "gotcha" politics, played to the cameras, and asked misleading questions. Are we to believe that Senator Kennedy cared about the substantive answers to his questions?

Senator Kennedy accuses Justice Alito of a "pattern" of deception, including misleading the committee about his views of criminal procedure.

When questioned, he insisted that one of the judiciary's most important roles "is to stand up and defend the rights of people when they are violated." But Alito cast the deciding vote in Hudson v. Michigan, in which the court decided -- contrary to almost a century of precedent -- that evidence gathered during an unconstitutional search of a suspect's home could be used to convict him.
Whatever one thinks of the merits in Hudson, it is hard to argue that the Scalia majority Alito joined was "contrary to almost a century of precedent." See, for instance, Orin Kerr's analysis here.

In other places, Kennedy combines distortions and disingenuousness at the same time.

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."
Here Kennedy misrepresents the substantive issue in the case, which concerned the interpretation of the Controlled Substances Act, not the scope of federal power under the Commerce Clause. While I disagreed with Justice Scalia's dissent, it was hardly "startling." What is "startling," however, is Senator Kennedy's suggestion that he now believes the federal commerce power is limited (and that such limits should be enforced in federal court).

Senator Kennedy is simply upset that President Bush nominated, and the Senate confirmed, two intelligent, conservative jurists. I don't agree with all of their legal opinions thus far, but it's hard to claim that either Roberts or Alito was unqualified or should not have been confirmed. I also agree with Franck that any criticism of either justice (or, for that matter, any justice) should focus on their judicial philosophy, and not the specific policy results in specific cases.

the senator from Massachusetts provides all the evidence one needs that, for some senators anyway, it is not legal thinking that matters at all. It is only results. From start to finish, this column amounts to one long whine that Chief Justice Roberts and Justice Alito don't share Senator Kennedy's view that Senator Kennedy's policy preferences should be enacted by the Supreme Court. What Kennedy doesn't have is anything resembling a legal argument against a vote cast, or an opinion written or joined, by either of these two justices.

Related Posts (on one page):

  1. Kennedy Correction:
  2. Wittes on Reforming the Confirmation Process:
  3. Senator Kennedy Assails Alito and Roberts:
Ship Erect (mail) (www):
You don't have to agree with everything Kennedy says in the op-ed to think that the SC confirmation process is utterly ridiculous for how quiet and boring the nominees attempt to act. Who doesn't have an opinion about Roe v. Wade? Get those opinions out in the open; staying silent about them makes the nominee seem embarrassed.
7.29.2006 9:43pm
JohnO (mail):
Ship Erect:

You're right about how screwed up the confirmation process is. Although I have little good to say about him, Senator Byrd made a truly statesmanlike speech in annoucning how he would vote on the Aluito nomination. He said the Dems were embarrassing in the way that they tried to derail the nomination through tricks and trivia, and castigated the Republicans for basically abdicating their obligation to actually ask serious questions of the nominee.
7.29.2006 10:02pm
Tom952 (mail):
Why is Kennedy's opinion national news? Outside of his own state, I doubt he would be elected to any office. He is a fringe Senator with a severely tarnished reputation.
7.29.2006 10:06pm
Ship Erect (mail) (www):
Thanks for the pointer. Whatever else one can say about Byrd, he takes seriously the responsibilities, both positive and negative, that come with organizational membership, in striking opposition to a pushover like Bill Frist.
7.29.2006 10:15pm
Chris Bell (mail):
I agree with JohnO (and I guess with Sen. Byrd.) The hearings were disgusting. The Republicans just read the candidates resumes in more and more glowing terms while the Democrats searched desperately for a misstep by the candidate.

Ship Erect, why would it matter if the candidates gave answers on Roe v. Wade? The Senators already have their minds made up.

"[The Supreme Court] is the place where the rights and liberties of the American people are best protected." ~Edward Kennedy

God I wish Congress (or the lack of it) thought if itself in those terms.
7.29.2006 10:22pm
Spoons (mail) (www):
The nominees should not even be called to testify before the Committee. That's not the kind of confirmation process the framers ever intended, nor the kind that we had for the first 150 years or so of our Republic.
7.29.2006 10:39pm
Ship Erect (mail) (www):
why would it matter if the candidates gave answers on Roe v. Wade?

I'd actually be interested in hearing their theories about how they'd overturn it if they so desired. Perhaps a senator could ask this of a pro-choice nominee. "I don't know and don't want to say" shouldn't be a valid response; they're going to be giving their opinions about cases for the rest of their lives, so clarity should be paramount.
7.29.2006 10:46pm
Chris S (www):
Roe v Wade and other contentious issues can't be summarized in 5 minute sound bites, especially considering that the opinions are very nuanced and take ~100 pages.

And how can you state an opinion when you don't know what the specifics of the case are? There are no facts to discuss, no theories to debate. Judges don't form their opinions in a matter of seconds and shouldn't be forced to do so in front of grandstanding politicians.
7.29.2006 11:11pm
Glenn W Bowen (mail):
ol' Ted's a house afire on the occasions he's sober and his pants are up...
7.30.2006 12:03am
byomtov (mail):
why would it matter if the candidates gave answers on Roe v. Wade?

Because they are supposed to answer truthfully?
7.30.2006 12:21am
Lev:
Term limits for SCt judges (sic):

* 25 years or age 75, whichever comes first

* 18 years with the nine positions' terms staggered, one up every two years
7.30.2006 12:53am
Erasmussimo:
I too feel that the confirmation process has lost meaning. The Senate has a duty to make a considered judgment on the qualifications of a nominee, and that requires them to probe the nominee's judicial philosophy. While I agree that it is improper to ask a nominee how he might rule on a future case, I think it fair, proper, and useful to ask a nominee to critique previous decisions. Such a discussion would reveal a great deal about the nominee's legal philosophy -- and evaluating that philosophy is central to the duty of the Senate.
7.30.2006 1:01am
therut:
Oh my I am ashamed and I think our democracy is at risk with the conservative bashing of out esteemed USSC and picking out paticular Judges is just pathetic. Why these people are GODS and above conservative criticism. After all our democracy is at risk!!!!!!!!!! Should I scream that. Be afraid of the radical right wing. They are atacking our USSC Judges. Kennedy is just too easy to make fun of and too see his stupidity on grand parade is just delicious.
7.30.2006 1:23am
eric (mail):
I find it repulsive that Sen. Kennedy will willfully misrepresent the issue in a case in order to attempt to score gotcha points on a Supreme Court nominee.

We all know that Alito just rubber stamps strip searches of ten year old girls and hates babies, minorities, and loves big corporations.

I guess talk about the scope of a warrant, etc, is just soooo boring.
7.30.2006 2:46am
Justin (mail):
Professor Adler,

The dissent in the Oregon case was very much a STARTLING view of "the Commerce Clause" and particularly the powers granted an Article II delegation so upon. While the dissent spectacularly missed the (correct) phrasing of the question before them, pretending that the dissent so focused is not required.
7.30.2006 2:51am
Brian G (mail) (www):
Senator Kennedy must have hired the same guy to both write that op-ed and to take his Spanish exam at Harvard.
7.30.2006 3:39am
Brian G (mail) (www):
Oh, I thought it was Roberts who loves searches of 10-year old girls. If you are going to criticize, at least know who is who.
7.30.2006 3:41am
Kevin L. Connors (mail) (www):
Just from your first quote: Roberts and Alito don't have enough record as Supremes to support Kennedy's assertions. This is the worst form of demagoguery.
7.30.2006 5:29am
Jonathan H. Adler (mail) (www):
Justin --

I suggest you re-read the case -- and the history of commerce clause doctrine. First, both the majority and dissent are focused on questions of administrative law (and, on those terms, the dissent is far more powerful -- even if wrong). Second, the commerce clause is only relevant in this case insofar as it should trigger various canons of construction and overcome Chevron deference. The majority hardly addresses the issue (likely because some of the justices were not comfrotable with resting the decision on such grounds), but the dissent does. Third, the Supreme Court long ago accepted that Congress could regulate articles of interstate commerce for the purpose of promoting public morality. Indeed, even the "Lochner court" accepted this fact. See, e.g., the Lottery Cases from 1903.

JHA
7.30.2006 9:24am
Frank Drackmann (mail):
Talk about Chutzpah..concern about the weakening of the Clean Waters act from a guy who dumped a 4500lb Oldsmobile into a pristine body of water.
7.30.2006 10:43am
Justin (mail):
Professor Adler,

You may want to review the holdings of Cruzan and Glucksberg, and be at least a little bit charitable to Senator Kennedy's reading if you are going to criticize him for being deceptive or idiotic rather than just in disagreement wtih yourself.

Also, I'd note that you've granted a lot in your post to the validity of mine, despite your tone - and that you're ignoring the fact that the public focus (particularly in the media) on the dissent focuses on the question of whether or not the government had the power (under the commerce clause, not just under Chevron, and despite the 14th Amendment, which was also underdiscussed by the dissent - one could easily see how amongst the stated powers Kennedy used "commerce clause" as a placeholder) - not, as the majority properly noted the case to be - whether Congress intended to convey such power.
7.30.2006 11:43am
Frank Drackmann (mail):
Opening Over/under line on Ted Kennedy/Al Gore combined weight(lbs): 625
7.30.2006 12:07pm
Jonathan Adler (mail) (www):
Justin --

Neither Cruzan nor Glucksberg had anything to with the scope of the federal commerce power, nor does either support anything in Senator Kennedy's op-ed. Nor did either have anything to do with Gonzales v. Oregon.

Certainly many commentators wrote as if the Oregon case had something to do with the scope of federal power, but as a legal matter it did not. I expect a Senator on the Judiciary Committee to know this, and public misperceptions do not excuse his characterization of the dissent.

JHA
7.30.2006 12:33pm
byomtov (mail):
I also agree with Franck that any criticism of either justice (or, for that matter, any justice) should focus on their judicial philosophy, and not the specific policy results in specific cases.

Pretentious waddle.

Judges have always been criticized for their decisions, sometimes very harshly, from all sides of the political spectrum. And spare me the claim that conservative criticism is based on "judicial philosophy" and somehow more principled than liberal criticism. The fact is people want certain outcomes, are unhappy when they don't get them, and look for any argument that comes handy.

This whole question of what murky shade of philosophy describes a judge may be of interest to a handful of law professors, but for practical purposes it means very little.
7.30.2006 12:41pm
Houston Lawyer:
I suggest that the senator take some of his favorite justices out for a drive to show his appreciation.
7.30.2006 1:38pm
godfodder (mail):
byomtov:
Call me pretentious, but I don't think it is in the least unreasonable to expect judges to enforce the laws as written and intended, rather than pursue certain policy objectives. Yes, of course, politicians and activists of all sorts want specific outcomes, but that doesn't mean that judges should agree to provide them.
Just think about it for a moment. If judges are really spokesmen for certain policies, then the written law means little to nothing. Is that the legal environment we all want to live in? It is not too much to ask judges to leave their policy preferences at the door, to the degree that they (or any person is able).
7.30.2006 1:59pm
godfodder (mail):
The real difficulty I have with Kennedy's opinion piece is the deceptive and highly personal nature of its attacks. I can't help but feel that the recent decline of decorum and decency in American politics is going to bear evil fruit. (hmm, mixed metaphor anyone? I thought not.) Judges Thomas and Alito were behaving entirely within the norm during their confirmation hearings. Judge Ginsberg was no more forthcoming during her hearings.

So, does Kennedy decry the entire system of hyperpartisianship that drives Supreme Court nominees to such slippery tactics? No! He contributes to it by singling out two nominees who are on the "wrong side" politically, and tossing his mud at them alone. (And "mud" it is-- misleading insinuations, irresponsible rhetoric, intentionally skewed misrepresentations of cases and decisions).

Want to know why no nominee in his right mind would answer forthrightly the questions posed in the Committee? Look no further than this hit piece by Sen. Kennedy. (And yes, both sides are guilty of this. But I don't remember a Republican member of the Judicial Committee writing similar op-eds about Justice Ginsberg, or Souter, or Kennedy, etc.)
7.30.2006 2:21pm
byomtov (mail):
godfodder,

My problem with your point of view is that it states an ideal that does not exist.

Laws and constitutions do contain ambiguities, and judges do interpret them, often, in accordance with their personal ideologies. That's not to say there is no difference between judges and legislators, but I think it is foolish to pretend the line is absolute.

The President certainly takes political ideology, and a judge's likely rulings, into account in making nominations. Why should the Senate disregard these factors?
7.30.2006 2:26pm
Bithead (mail) (www):
If the nomination process is broken, it's because Kennedy and those of like mindless, broke it.
7.30.2006 2:45pm
Frank Drackmann (mail):
Ironic that JFKs only appointment to the court, Whizzer White, would be doomed today because of his abortion and contraceptive views.
7.30.2006 5:04pm
David M. Nieporent (www):
Laws and constitutions do contain ambiguities, and judges do interpret them, often, in accordance with their personal ideologies. That's not to say there is no difference between judges and legislators, but I think it is foolish to pretend the line is absolute.
That's true... but you've taken things a level farther, from the law to "personal ideology" to policy preferences.

As for that execreble op/ed, Kennedy basically says that only a nasty lying conservative would suggest that the court should defer to the expertise of the executive branch... except that only a nasty lying conservative would refuse to defer to the expertise of the executive branch. (Hamdan, Rapanos)

Of course, there are very different issues in those two cases... but you wouldn't know that from this op/ed, since Kennedy treats them both as wrong based solely on his preferred outcomes.
7.30.2006 8:14pm
byomtov (mail):
but you've taken things a level farther, from the law to "personal ideology" to policy preferences.

Your point is not clear to me. When I used the term "personal ideology" I was referring to political ideology. Political ideology manifests itself in policy preferences. So yes, I do think judges rule, not infrequently, on the basis of their policy preferences. This is especially true of Supreme Court Justices, by virtue of the type ofcases that reach them,

Look, assuming normal life expectancy, John Roberts is going to be Chief Justice for about 30 years. That's about as long as he's been old enough to drink. Given the power of that position, I don't see why any questioning remotely connected with the job ought to be off-limits.
7.30.2006 10:17pm
LN:
i 've read alot of post saying the judical nomination process is broken. this general comes from people with "liberal" leanings. some with "conservative" leanings tend to sgree. do not. liberals call it broken because they can't stop qualified judges like alito and roberts. they can no longer "bork" good judges because republicans have 55 senators. its only "broken" because they can't manipulate it. ignore the wailing and gnashing of teeth from these whining losers.
7.31.2006 8:59am
keypusher (mail):
One reason nominees do not state their opinions on Roe v. Wade (beyond the incontestable fact that it's a precedent) is that senators would then be forced to cast a yes or no vote on the constitutionality of abortion, which many do not wish to do.
7.31.2006 7:13pm
byomtov (mail):
One reason nominees do not state their opinions on Roe v. Wade (beyond the incontestable fact that it's a precedent) is that senators would then be forced to cast a yes or no vote on the constitutionality of abortion, which many do not wish to do.

You're claiming that the reasons nominees routinely lie is to spare Senators embarrassment?
7.31.2006 11:18pm
Boggled:
Kennedy was referring to the rationale. You don't think it's startling to see that the commerce clause extends to "public morality"? I'm pretty startled by that one. Makes me think that overturning that gun ban must have been a mistake.
8.1.2006 10:24pm