Wednesday, February 8, 2006

Thank Kerry for Alito confirmation


Thank you, John Kerry. Or make that, merci beaucoup.

Almost single-handedly, the Massachusetts senator turned a Democratic defeat into an instructive, five-star disaster.

Everyone knew Democrats didn't have the votes to defeat Judge Samuel Alito in an up-or-down vote. Everyone knew they didn't have the 41 votes to sustain a filibuster of President Bush's Supreme Court nominee. But that didn't stop Kerry. Yes, as he might say, who among us doesn't want to launch a futile filibuster of an indisputably qualified nominee to placate the left-wing blogocracy and anti-Alito hysterics on The New York Times' editorial board?

And Monsieur Kerry did all this in his own special way. He phoned in his "Filibuster Alito" call from the ski slopes of Switzerland. C'est magnifique. It provided a moment of exquisite clarification, a confirming coda, in our age's recent court wars.

Most Democrats probably wanted to lick their wounds and fall back to fight another day after the mess Judiciary Committee Democrats made of themselves in the Alito hearings. Alito had answered -- or, where appropriate, refused to answer -- their often-windbag questions with erudition and aplomb. He had set out his philosophy and showed his skills and temperament during four long days. His support in public opinion polls had gone up. Judiciary Committee Democrats, by contrast, had became the object of ridicule, and not just on the right. The efforts of Sen. Ted Kennedy and others to tar Alito as some ethically challenged racist/sexist were worse than ugly: They were lame and ineffective.

The teary exit of Alito's wife, Martha, from the hearing room highlighted the human toll of these attempted "borkings" and might have suggested that the days of these glorified muggings by Senate Democrats were at an end. But it's a measure of the left's bitter zaniness about Alito that her tears only occasioned cheap shots -- "his wife's bizarrely over-covered crying jag," The New York Times said in one of the nicer ones -- and the failure to demonize Alito only produced calls for a filibuster everyone knew would fail.

How to explain a move that was less a tactic than a tantrum? Simple: Alito would not give them the assurances they demanded on certain issues. He would not commit to judicial results they favored.

More specifically, he failed to pass the litmus test of the folks who constantly say they oppose litmus tests: unlimited abortion on demand. He explained his past rulings on both sides of the issue. He promised to give Supreme Court precedents all due consideration. He testified at length about the constitutional issues involved. But he wouldn't make pronouncements on a matter that will inevitably come before the high court in one form or another.

In the end, the fans of outcome-based judging were refighting the 2004 presidential election.

Consider the impact of Kerry's march of folly. Democratic filibusterers have set a new standard for Supreme Court confirmation. Alito spent 15 distinguished years on the Third Circuit Court of Appeals. Court colleagues -- judges nominated by conservative and liberal presidents -- endorsed Alito. Former clerks -- abortion-rights fans and liberals among them -- praised his nonideological approach to judging. The American Bar Association gave the him a unanimous "well-qualified" grade.

And, still, 24 Democrats not only opposed Alito, but opposed him enough to filibuster. Will Republicans who may oppose the views of a Democratic president's nominee feel free to filibuster? Let's hope not, but Democrats who want to be president won't have standing to complain. Hillary Clinton, Evan Bayh, Joe Biden and Barack Obama all joined Kerry.

Having lost the Alito vote, the filibuster crowd lost credibility and influence in future nomination battles. In fact, Kerry forced many who thought a futile filibuster unwise to go along. California Sen. Dianne Feinstein, for example, had said a filibuster was unjustifiable. Last week she filibustered. Kerry no doubt offered her a ready rationale for her flip-flop:

I actually opposed the filibuster before I voted for the filibuster.

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