Posted by Jonathan Adler:
Senator Kennedy Assails Alito and Roberts:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1154219073
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
[1]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 [2]Bench Memos co-blogger Matthew Franck [3]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 [4]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.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2006/07/28/AR2006072801489_pf.html
2. http://bench.nationalreview.com/
3.
http://bench.nationalreview.com/post/?q=MzQyNzAyYTdhOWYzMzFmMWM3MzRlYmE5NzFjOWFlYjQ=
4.
http://www.orinkerr.com/2006/06/15/hudson-v-michigan-and-fourth-amendment-precedent/
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