Monday, November 14, 2005

Nelson Breaks with Dems/Dean on Alito

by Kyle Michaelis
Symbolic gesture? Empty statement? Outright betrayal?

It's difficult to say just which of the above Sen. Ben Nelson's column in the Sunday Omaha World-Herald qualfies as in regards to the nomination of Samuel Alito to the Supreme Court. Until now, Nelson had remained uncommitted on Alito beyond stating respect for his qualifications with a generally favorable impression heading into January's confirmation hearings.

It was a well-reasoned, entirely respectable and respectful position that maintained his essential role as one of the Senate's bipartisan "Gang of 14" protecting the minority's traditional right of filibuster balanced against the rightful authority of the President to name federal judges as he sees fit. Wait and see...give the man a fair hearing...let's take our time and do this right before making any final decisions - - - all perfectly acceptable ideas that Nelson seems to have now abandoned needlessly with little regard for his "fellow" Democrats or the potential long-term repercussions of this nomination.

Nelson writes:
With one successful and one unsuccessful Supreme Court nomination behind us, the Senate now is considering the nomination of Judge Samuel Alito to replace retiring Associate Justice Sandra Day O'Connor. By all accounts, Judge Alito is a nominee with impeccable judicial credentials and experience.

That's both the good news and the bad news. His background and extensive record on the appellate court are fodder for all sides in the debate. His record can be used to prop him up or tear him down.

Just days after his nomination was announced, the battle has been fully joined. Already, in Nebraska, television advertisements sponsored by Washington special-interest groups have been carried over the airwaves....

For me, when it comes to judicial nominees, the issue is judicial activism. Does the nominee want to make law or apply law? The answer to this question is central to the constitutional ideal of separation of powers and could disclose the intent of a nominee to act as a legislator instead of an adjudicator.

For the most part, what I've heard from Nebraskans when it comes to considering Supreme Court nominations is that they want the president to appoint and the Senate to confirm a "good judge" and, in the process, to avoid labels and resist litmus tests. The special-interest groups in Washington have litmus tests and expect nominees to adhere to them.

In my meeting with Judge Alito on Nov. 2, he assured me that he was carrying no political agenda to the bench. I asked him if he envisioned himself carrying a hammer and chisel and looking to forge new law. He assured me that he would consider each case on its merits and would bring no agenda to the bench.

The president's nominees, especially to the Supreme Court, deserve an up-or-down vote, even if the nominee isn't popular with the special-interest groups in Washington. As a former governor who appointed the entire Nebraska Supreme Court and the entire Nebraska Court of Appeals and more than half the current judges in Nebraska, I understand how important appointments are to our judicial system.

What the John Roberts appointment showed us is that the process can work even in the most partisan atmosphere. What the Harriet Miers nomination showed us is that it's not always partisanship that derails the process.

Perhaps the Alito appointment could show us all that judges can act independent of their political agendas and avoid the traps of judicial activism.

Is it just me or did Nelson just kill the Gang of 14 compromise - at least in principle if not in practice?

Today's none-too-subtle shift by Nelson calling for an up-or-down vote on Alito and seemingly ALL of the president's judicial nominees is entirely lacking in the "extreme circumstances" qualification that has until now been the hallmark of this vital, bipartisan compromise. Be it intentional or not, he has completely undermined the Democratic minority and the carefully-crafted positioning of the Gang of 14 that has thus far been Nelson's most impressive legislative contriubution.

Of course, Nelson's reliance on buzzwords denouncing "judicial activism" and "litmus tests" has long seemed a generally unprincipled and ultimately cynical abuse of political rhetoric. It is a hodgepodge of soundbytes masquerading as a judicial philosophy with little regard for the true role of the courts in U.S. history.

Use of convenient, politically-charged language could be justified (barely) when Nelson used it to balance the protection of Constitutional freedoms with the political reality of our day, but his backing away from any attempt at such balance by swearing allegiance to this idea that any nominee deserves an up-or-down vote is one of those last straw situtations that tests ones ability to tolerate, let alone actively support, Nelson as he seeks re-election.

That Nelson could even suggest that the withdrawal of Bush's first nominee, Harriet Miers, was not a partisan act demonstrates an absurd divorce between ideology and partisanship in Nelson's thinking. It is plainly ludicrous and insulting. Of course partisanship brought down Miers - except here it was Miers' ideological uncertainty amongst partisan purists of the same stripe rather than those on the other side of the aisle.

She was not a sufficiently known quantity to pass muster with the conservative powers that be, who feel they have been burned by such types before feeding an endless persecution complex so sickening that it would be a self-fulfilling prophecy if their were any justice or sense in this world.

Nelson's disregard for the truth of the Miers nomination is disloyal and dishonest - extending the Republican Party undeserved latitude and deference he fails time and again to extend to his own party. I can embrace the independent leadership of a true non-partisan but not this unthinkingly biased buying-into Republican talking points. By virtue of Nelson's new-found call for universal "up-or-down" votes, he should - if anything - be pointing out the hypocrisy of Republican special interests' years-long calling for such treatment when they would not even extend it to one of their own. Consistency should not be too much to ask.

Note, too, how Nelson's newly-stated position contradicts the efforts of Democratic Party Chair Howard Dean, as stated in a Sunday "Meet the Press" interview:
Despite early signals to the contrary, U.S. Senate Democrats must keep open the option of blocking a confirmation vote on U.S. Supreme Court nominee Samuel Alito, Democratic Party leader Howard Dean said on Sunday.

"This could be a defining moment," Dean said. "Judge Alito is a hard-working man, a good family man, but his opinions are well outside the mainstream of American public opinion...."

Conservatives have rallied behind Bush's nomination of Alito, 55, believing he would help push the nation's highest court to the right on abortion and other social issues.

If confirmed by the Republican-led Senate, Alito would replace retiring Justice Sandra Day O'Connor, who often has been the swing vote on the nine-member court.

A number of moderate Senate Democrats and Republicans have said at this point they see no "extraordinary circumstance" that would merit a filibuster against Alito.

And last Sunday, Democratic Sen. Joseph Biden of Delaware, a member of the Judiciary Committee, said he expects members of his party to permit a confirmation vote on Alito without the threat of a filibuster.

Biden and others have said a final judgment on a possible filibuster would be made after they learned more about Alito. But so far indication have been there will not be one.

Dean, asked if Democrats should keep the possibility of a filibuster on the table, said, "Absolutely. Of course we should...."

"I think the Democrats are going to have to think long and hard, as the hearings progress, about whether we should support him," Dean said.

Whether Alito is filibustered or not - frankly, I think it would probably be a very bad idea to do so - Nelson was wrong to take advantage of the likelihood of Alito's confirmation in such a manner that ties the hands of Senate Democrats by straying from the simple and effective message of impartiality and patience that would allow the citizens of this country every opportunity to examine Alito for themselves.

I am disappointed. I am dismayed. The Ben Nelson I respect should have known better than to foolishly go out on this limb contradicting the principles he has heretofore espoused, not to mention the work of his party as they responsibly consider Alito's nomination on behalf of the American people in the careful manner to which Republicans - for their philosophy of "message control before all else" - have proven completely and fundamentally incapable.


Anonymous Matt said...

Well said Kyle. I about put a hole in the table after slamming it so hard while reading that very article.


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