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.