Take politics out of the process

The Senate Judiciary Committee voted on a strictly party-line vote this week to recommend approval of Judge Samuel Alito as the next justice of the Supreme Court.

The full Senate, too, is expected to break down along mostly party lines when Alito is ultimately approved.

Considering that Alito comes with the highest recommendation of the American Bar Association, was unanimously approved by the Senate earlier for his job on the Third Circuit Court of Appeals, listened politely and temperately as his character was maliciously impugned during questioning by Democratic senators, and earned the respect and admiration of a wide variety of colleagues on the Third Circuit bench - you would think that it would be a no-brainer to punch the "Yea" button and get Alito suited up in his black robes to hear arguments from lawyers rather than senators by next week.

It is entirely regrettable that, instead, senators have decided to turn the process of confirming judicial appointments into just one more installment of "gotcha" politics.

There should be no politics at all in the confirmation process, and until recently there wasn't. Justice Ruth Bader Ginsburg, for instance, was approved by the Senate on a bipartisan 96-3 vote, even though her longtime affiliation with the ACLU left no doubt about her liberal leanings. Republican senators were not particularly happy about the appointment, but they recognized that judicial appointments are made at the prerogative of the president. The Senate's job is to make sure the appointee is qualified, not to demand a particular political slant.

It is presidential elections where the political implications of judicial appointments are properly debated. During most elections, it is frequently explained to voters who are paying attention that one of the most important decisions any president will make is an appointment to the lifetime tenure of the high court.

Indeed, President Bush campaigned explicitly on that issue in both 2000 and especially 2004, saying that he should be elected because he would appoint judicial conservatives to the Supreme Court if he had a chance. In particular, he said he would look for judges who were strict constructionists like Justices Antonin Scalia and Clarence Thomas.

It should therefore have come as no surprise to anyone that when the president got his chance to name replacements for the late Chief Justice William Rehnquist and Justice Sandra Day O'Connor, he appointed John Roberts and Samuel Alito. Both men, after all, approached the job of justice as one who measures the facts of a case against the applicable words of a law or constitutional provision to make sure the law is carried out as intended by the legislature or our founders. Alito and Roberts have both sworn they bring no personal agenda to the bench and that they would not try to replace the law-making power of Congress with their own.

But what the Democratic senators are insisting on, without saying so, is a justice who will vote the same way they would vote if they had a chance, especially in regard to Roe vs. Wade and other abortion law. They also have explicitly argued in favor of a court which is frozen with a certain kind of ideological mix. Thus you hear about Alito filling "the O'Connor seat," with the supposition that O'Connor's replacement on the court should vote just as she did so that the court doesn't get too conservative. (No word from the Democratic senators on how much they would have hollered if President Bush had decided to appoint a known liberal to the O'Connor seat, but somehow we think changing the ideological balance leftward would not have been so much a problem.)

The question for senators now is not whether Alito should be confirmed. He plainly should. The question is how much damage has been done to the Senate by the politicization of the confirmation process and whether Republican senators will turn "gotcha" into "payback" the next time they have a chance to vote on a future Democratic president's nominees.