Alito as Supreme Court Justice: Are you concerned?

Your Constitutional argument is flawed.

The Constitution says "advice and consent" without defining what that means. It leaves it up to the Senate to figure out what it means to give "advice and consent".

We are arguing over two different standards of "advice and consent". The drafters of the Constitution specifically didn't set up a process with either one of these standards.

The fact is that under current Senate rules, the filibuster is a legal and viable tactic if 41 Senators feel strongly enough to make the political gamble.

This is the real crux of our argument.

The simple argument I am making is that-- especially in a Supreme Court selection-- this extra Check on the majority party is a good thing.

Of course this is a subjective argument.

With Alito, I am accepting reality. The filibuster will not work because there are not enough Senators from the minority party that feel strongly enough or have the political support to support it.

The partisan ebrown is disappointed with this result since, if I were Senator, I would be at the forefront of championing a filibuster of Alito.

The non-partisan ebrown points out that this result makes the point that the filibuster works. The system will only stop judges who are perceived as more extreme than Alito.

In such a case I feel comfortable that the filibuster is available.

You seem to be inferring that Alito is opposed by the majority of Americans, but polls do not show that. Most polls show Americans favor his confirmation, are negative to filibuster, but simultaneously are confident he won't work to overturn Roe V. Wade. I'm not a fan of polls, but characterizing him a "radical" appears to be a charge not shared by the majority.

... We liberals have simply not made a convincing case.

... But I am not going to blame the system for the failings of the Democratic party.

(1) When candidates for a court need super-majorities to get their jobs, broadly acceptable judges will run the courts. In Germany for example, judges need a 2/3 majority to get onto the constitutional court. All our judges and ex-judges from that court are highly respected. But we never had the kind of infantile love-hate relationships with any of them that Americans had with people like Warren, Brennan, or Scalia. (Yeah I know -- look who's talking! ) I appreciate a good fight between Supreme Court judges, but would it really be so bad if Supreme Court judges needed to convince 60 Senators, not 50, that they ought to sit on that court? The obvious objection to argument #1 is that this is not what the constitution says. This is where #2 comes in.

(2) For all practical purposes, the American constitution does contain unwritten parts that deserve respect. I know this is a strange thing for an originalist to say, but my mind has opened somewhat to this as a side effect of my discussions with you. For example, nothing in your constitution says that there are nine Supreme Court justices. Yet only two presidents after the founding era -- Lincoln and FDR -- ever tried to use their constitutional discretion for a court packing. And only one -- Lincoln -- succeeded at it. Thus, for all practical purposes, the number of judges on the Supreme Courts is carved in stone. Why wouldn't the filibuster, a constitutional tradition of comparable standing, deserve a similar degree of respect?

Brandon9000 wrote:

After Alito takes his place on the SC, the new trend in the court's decisions will slowly move the country to the right, and all those annoying liberal ideas will be mostly forgotten by the average person. My only hope is that Bush gets to appoint another SC justice later.

Which "annoying liberal ideas" are you talking about. Civil rights? Interracial marriage? Secular education? Habeus Corpus?

Timber,

I think your use of the term "will of the electorate" is problematic (and an oversimplification). That would imply that Republicans always represent the "will of the electorate" which by any rational definition of that term is incorrect.

I see the exact opposite happening. The Republicans, particularly the Bush presidency, have been successful by appealing to their core-- which happen to be social conservatives. Many of the values are not in line with what Americans say they want.

... I think that mainstream Americans could largely be persuaded.

Unfortunately no one with a voice is making a persuasive arguement... and perhaps we will never know if I am right or wrong.

fishin' wrote:

As to the original question - I think Alito takes a well reasoned approach to the bench. Contrary to the fear mongering from the left, I don't think Roe is any danger of being overturned any time soon (I don't expect a wholesale overturning of Roe at all. If anything, it will be an incremental chipping away at it until there isn't much left.).

Isn't it just as bad to chip away at it? Hopefully, Alito will be true to his emphatic emphasis on "Stare Decisis" during the hearings.

Claiming that a Bush administration that is opposing anti-torture leglislation, wants to override Roe v. Wade, imprisons an American citizen without due process and wiretaps Americans without judicial oversight somehow represents "The Center" seems ludicrous to me.

The talking points you have posted here seem bad on the surface, but once you look at them in depth, most Americans agree with them.

In my view the Democrats should be more like the Republicans in this regard. The Democrat base should include those of us who oppose the Iraq war, want more spending on social programs and value civil rights over security.

Like the Republicans, the Democrats could strongly champion these core values and then explain their position to Americans at large. My values are no more extreme than the "Christian Conservatives" who are dancing in the streets about Alito.

But if it doesn't we still need a Liberal Goldwater.

After Alito takes his place on the SC, the new trend in the court's decisions will slowly move the country to the right, and all those annoying liberal ideas will be mostly forgotten by the average person. My only hope is that Bush gets to appoint another SC justice later.