Its an interesting time at the Supreme Court of the United States.
President Bush kept his promise by naming two Supreme Court nominees who share a conservative judicial philosophy and a commitment to upholding the Constitution not re-writing it. But if you take a closer look at the events, a troubling pattern is developing.
When President Bush named John Roberts to replace the retiring Justice OConnor, the opposition groups were preparing to do battle when the unexpected happened Chief Justice William Rehnquist, who had been battling cancer, died. The Roberts nomination immediately took on a different tone when President Bush nominated Roberts to replace Chief Justice Rehnquist.
At this point, the opposition groups including many outspoken Democratic Senators began to take a different view of this nomination. Instead of replacing Justice OConnor who more often than not provided a swing vote on many of the key cultural and legal issues of our day Roberts would replace Chief Justice Rehnquist, one of the courts more conservative jurists. The nomination was seen as replacing a conservative with a conservative no change in the balance of the high court. And, the ensuing debate was more muted more measured. In the end, John Roberts was confirmed by the Senate by a vote of 78-to-22.
The cordial environment in the Senate quickly evaporated when President Bush named Samuel Alito, Jr. to replace Justice OConnor. Immediately, the same Senators along with the same opposition groups started laying the groundwork for a more bitter battle. After all, there was much more at stake. Judge Alito an accomplished federal appeals court judge with a 15-year record embraces a conservative judicial philosophy too. But this time, Samuel Alito was viewed as more dangerous than John Roberts by the liberal left because Judge Alito was perceived to view many constitutional issues differently than Justice OConnor meaning that his judicial philosophy and votes would align more closely with conservatives than liberals on the high court.
Like the nominee before him, Judge Alito exhibited a conservative judicial philosophy with a limited role. A judge can't have any agenda, Judge Alito told the Senate Judiciary Committee. The judge's only obligation -- and it's a solemn obligation -- is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.
Its the same judicial philosophy expressed by John Roberts. But this time, it triggered much more animosity and bitter partisanship. A number of Democrats pounded on Judge Alito even bringing his wife to tears. An 11th hour filibuster attempt failed and Judge Alito went on to become Justice Alito by a vote of 58-42 a much smaller margin of victory than Chief Justice Roberts received.
Its clear the judicial confirmation process has now become politically supercharged signaling a troubling change in the confirmation process itself.
Sen. Orrin Hatch (R-UT) pointed out that not long ago two socially liberal Supreme Court nominees enjoyed wide bi-partisan support with Justice Ruth Bader Ginsburg clearing the Senate by a vote of 96-3 and Justice Stephen Breyer being confirmed by a vote of 87-9.
Theres a storm cloud on the horizon, said Sen. Jon Kyl (R-AZ) referring to the challenges ahead for the Senate when the next Supreme Court vacancy occurs.
Sen. Lindsey Graham (R-SC) went even further. Its about politics, he said referring to the confirmation process. And that does not bode well for the future of the judiciary.
The Constitution is very clear in this area. The Senate is to provide advice and consent for the Presidents nominees. That does not mean the Senate has a green light to conduct a character assassination by belittling and berating a nominee who is qualified and reflects the judicial philosophy of the President who nominated him. Thats not the way the system is supposed to work.
With another Supreme Court vacancy certainly possible in the remaining years of the Bush administration, the question remains: Will the Senate return to the civil discourse and debate the served as a hallmark of earlier confirmation proceedings? Or, will the Senate continue down the disturbing path its on right now politicizing the judicial confirmation process and polarizing the American people?
And, if the Senate stays on its current course; theres another troubling aspect to consider. The nations best the nations brightest judicial candidates may decide to stay clear and refuse to be considered for judicial openings. As Sen. John Cornyn (R-TX) puts it: the Senate will need to come to terms with our confirmation process which too often treats Supreme Court nominees more like piatas than human beings. Thats something that none of us should tolerate. Hes right.