Kennedy Grades Roberts and Alito

In Sunday's Washington Post, Teddy Kennedy offers a fairly decent rundown of the first Supreme Court session of John Roberts and Sam Alito. Although his take on the situation can't come as much of a surprise, he neatly sums it up in his title: "Roberts and Alito Misled Us." You think?

Although Kennedy may have some claim to say, "I told you so," he doesn't get to sidestep some responsibility completely. As he points out, he's a member of the Senate Judiciary Committee, and although he was clearly fighting an uphill battle, he didn't use his questioning period to illuminate the issues as clearly as he might have. The Democrats as a whole didn't seem to be taking their oversight duties as seriously as they demand. Kennedy criticized Republicans for using "their time to praise, rather than probe, the nominees." That's certainly true, but most of the Democrats (and particularly Joe Biden, if memory serves) took full advantage of the opportunity to bloviate themselves.

But that complaint aside, Kennedy's piece is well worth reading. He gives specific examples of both Roberts and Alito saying one thing to the committee and voting another way after receiving their lifetime tenures on the court.

During Roberts's hearing, I asked him about his statement that a key part of the Voting Rights Act constitutes one of "the most intrusive interferences imaginable by federal courts into state and local processes." In response, he suggested that his words were nothing more than an "effort to articulate the views of the administration . . . for which I worked 23 years ago."

Today -- too late -- it is clear that Roberts's personal view is the same as it was 23 years ago. In League of United Latin American Citizens v. Perry, the Supreme Court held that Texas's 2003 redistricting plan violated the Voting Rights Act by protecting a Republican legislator against a growing Latino population. Roberts reached a different view, concluding that the courts should not have been involved and that it "is a sordid business, this divvying us up by race."

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Perhaps the biggest winner is the president himself. During Alito's hearing, I asked him about a 1985 job application in which he stated that he believed "very strongly in the supremacy of the elected branches of government." He backpedaled, claiming: "I certainly didn't mean that literally at the time, and I wouldn't say that today."

But he is willing to say it now. In the very recent case of Hamdan v. Rumsfeld, Alito signed on to a dissent by Justice Clarence Thomas that asserts a judicial "duty to accept the Executive's judgment in matters of military operations and foreign affairs" as grounds for allowing the administration to use military commissions of its own design to try detainees at Guantanamo Bay, Cuba.

Generalities are useful, but specifics always help in an actual argument. But Kennedy doesn't just stop there. Although there's nothing short of impeachment we can do to affect Roberts or Alito, we can be more careful in the future. He offers some suggestions for future Supreme Court nominee hearings:

At a time when great legal issues are being decided by the slimmest of margins, we cannot afford to learn nominees' views only after they have obtained lifetime tenure on our highest court. Instead, the Judiciary Committee, the Senate and the American Bar Association need to work together to return to an honest confirmation process. I support reform despite my belief that the next justice will be nominated by a Democratic president and be sent to a Democratic Senate for confirmation.

The discussion should start with a few truths. First, any qualified nominee to the Supreme Court will have spent many years thinking about legal issues. We should require that nominees share that thinking with the Judiciary Committee, and not pretend that such candor is tantamount to prejudging specific cases. In particular, the Senate should have the same access to the nominee's writings as the administration. Second, the Judiciary Committee will need to reorganize the way it asks questions. An in-depth inquiry will require something more than short rounds of questions that pass from senator to senator. Third, we need to remember what this process is all about. It is good to hear that a nominee has a loving family, faithful friends and a sense of humor. It is important to know that nominees possess the intellect, life experience and discipline that make a good judge. But it is essential that we learn enough of their legal views to be certain that they will make good on the simple promise etched in marble outside the Supreme Court: "Equal Justice Under Law."

Whether we can be bothered to pay attention or not, new justices on the Supreme Court will have the power to alter American life for years and generations to come. Look at the influence they've had in the past: The civil rights movement was given a huge kick start by Brown v. Board of Education. We're still living with the fallout from Roe v. Wade. They forced Richard Nixon's hand and caused him to resign, and they ushered George W. Bush into power. Kennedy points out that in its next term, the Supreme Court is expected to take on cases involving abortion, affirmative action, and the Clean Air Act. We (and more importantly, Democrats on the Judiciary Committee) can't allow another right-winger misrepresent himself (and yes, I'm assuming it's a him) into a lifelong appointment.