Bench Memos

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Thanks, Senator Kerry!


In yet another floor statement today, Senator Kerry states that the very favorable conservative reaction to the nomination three months ago of Judge Alito was ominous. Kerry even points out that “Ed Whelan called it a truly outstanding nomination.” The reaction from me and others, Kerry says, “can mean only one thing. They either know or they have a full expectation of what kinds of opinions Judge Alito is going to issue, opinions that are in line with their extreme ideology.”

Note to Senator Kerry: Speaking for myself only, Senator, I would note that I have been explaining openly for the past three months why I believe that Alito will be an outstanding justice. There are no nefarious hidden secrets. And the fact that you would label a judicial philosophy that is faithful to the Constitution an “extreme ideology” merely marks you, once again, as the extremist.

By the way, if you had been paying any attention to what I and others have been explaining, perhaps you wouldn’t have resorted again to your risible use of Alito’s opinion on the Family and Medical Leave Act (in the Chittister case) against Alito. Or do you not care that Democratic appointees around the country read (and continue to read) Supreme Court precedent to require the same result that Alito reached?

Finally, Senator, I’m a bit puzzled by how you and so many of your colleagues maintain, on the one hand, that you wish Harriet Miers were the nominee, and insist, on the other, that President Bush is acting unlawfully on national-security matters. Do you not credit White House Counsel Miers with upholding the legal advice on which the President relies? Do you, perhaps, not take her seriously because she is a woman?

As for your claim that “not more than 25 Democratic senators have had a chance to speak”: As Democrat leader Reid has acknowledged, there has been ample time for everyone. Indeed, you’ve made your third floor statement while also working in a trip to Davos. That many Democrats have chosen not to speak would seem a reflection of how disreputable the attacks on Judge Alito have been.


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