At the end of The Bridge on the River Kwai, Col. Nicholson suddenly realizes that his sterling qualities of discipline and fortitude had deluded him into aiding the enemy by constructing and protecting the bridge, to the point of triggering the final desperate actions that led to the deaths of most of the main characters. The bridge is destroyed as he falls upon the detonator, a victim of his own stubborn obsession. “What have I done?” Col. Nicholson famously asked himself at that moment of anguished self-realization.
In the White House last week, someone–perhaps Harriet Miers, perhaps President Bush–must have muttered a similar thought, as the folly of the nomination and the harm it had done sank in. The president’s notable qualities–loyalty to trusted advisers, determination to stick with a decision through rough waters–were hurting his administration and potentially the Supreme Court. Fortunately, the gracious withdrawal by Harriet Miers spared the Bush administration the more spectacular destruction, worthy of a Hollywood blockbuster, that might have been precipitated by a drawn-out, failed confirmation battle.
Now it appears that if there is to be mindless destruction wreaked on Washington politics, it will be triggered by the Democrats. They have come out shrilly against President Bush’s superb nominee, Samuel Alito, clearly hoping they can repeat the successful character assassination that brought down the most able of unconfirmed nominees, Robert Bork. Harry Reid, that perceptive judge of judicial and executive competence, pounced on the selection, as did Ted Kennedy, who had praised Alito when he was named to the federal bench.
The liberal interest groups were issuing doomsday predictions before the television lights at the announcement had even been turned off. This, it would appear, is the moment of truth, as the future of the Court, the future of the country, hangs by a slender thread, and the forces are being amassed for the mother of all confirmation battles. “The stakes couldn’t be higher given the dangers posed by Alito’s record,” warned Nan Aron of the Alliance for [Liberal] Justice, while Judith DeSarno, president of an abortion-rights group, bemoaned that “it just can’t be much worse than this.”
Huh? Well, actually, it could be “much worse than this” for defenders of leftist jurisprudence. Nothing has yet appeared in Alito’s record to suggest that he burns with desire to wipe out the federal regulatory state, resurrect liberty of contract, or even abandon the right of privacy. He has never been a scholar, never authored extended tracts of elaborate jurisprudence, and shows no indication of being drawn to radical transformation based on abstract doctrine. Indeed, thoughtful conservatives may wish there were something more there. Reasonable people will read the record or watch the hearings and realize the sky is not about to fall, even for liberals.
Conservatives who yearn for an associate justice of proven substance can take heart in Alito’s long record on the bench. The administration is finally willing, perhaps out of exasperation after Miers, to nominate someone with a paper trail, and a fine trail it is. His opinions shine with the reasoned application of Supreme Court precedents. Opponents will grasp at the most slender of reeds, such as one of his dissents that would have upheld a state requirement of spousal notification by women seeking abortion, and another dissent that would have struck down a federal ban on machine guns. But to emphasize dissents is to offer a distorted view, giving the impression of a judge on the fringe–when dissents account for only about one-sixth of Alito’s opinions.
Also, Alito’s dissents are grounded in careful reading of the doctrinal tea leaves left by the Supreme Court. His Rybar opinion on machine guns was simply applying the Lopez standard that a substantial effect on interstate commerce must be shown. He even said he would have viewed the case differently if Congress itself (rather than the Court) had made such a finding–which is the posture adopted by the Supreme Court last term in Raich. His parental-notification opinion in Casey was a perceptive, highly respectful application of the muddled and evolving “undue burden” test that Justice O’Connor would infamously make the crucial element of abortion-rights jurisprudence when that same case reached the high court. Alito failed to foresee that Justice O’Connor herself would find the notification requirement unconstitutional, but that is only to admit that he is not God: No one lacking such celestial authority could accurately predict the jurisprudential meanderings of O’Connor, even based on a careful reading of her opinions.
Like John Roberts before him, Alito lacks a record of deep or provocative scholarly writings. The suspicion of intellect unharnessed by legal opinion-writing norms still seems strong in the White House, even when it might have eased confirmation, as with Michael McConnell. But Alito, like Roberts, does have a sharp mind that should serve him well, and is similarly calm, capable, and modest. Where do they find these people? This is hardly the dominant personality type in Washington or at the scholarly meetings I attend. When the respectful, self-effacing Alito is subjected to the rambling rant and smug sarcasm of Charles Schumer or Joe Biden, there is little question whom the public–and moderate senators as well–will find more persuasive.
Two dubious arguments are now being bandied about: first, that conservatives rejected Miers on ideological grounds, so liberals should reject any conservative nominees. But the shocked opposition to Miers was overwhelmingly based on a perceived lack of qualifications to serve on the highest bench. Even the White House seemed slow to grasp that, as shown by the clumsy attempts to reassure skeptics that Miers was religious (hint, hint) and so would vote the “right” way. Of course, there was considerable uncertainty about her judicial philosophy, or if she even had or could have one, but that was a consequence of her lack of qualifications–there was no there there, on which to judge.
The second weak argument is that the conservative willingness to jettison Miers before a messy floor fight or even hearings belies the Republican mantra that every nominee deserves an up-or-down floor vote rather than endless suspension in procedural limbo. But the effect of dragging out the unwinnable Miers fight would have been precisely the same as the filibuster of a nomination, refusal to report it to the floor, or other delaying tactics–to prolong the agony for the nominee and needlessly extend a vacancy on the federal bench. Moving for a quick end to the Miers debacle and opposing filibusters both serve the responsible goals of getting capable persons on the courts and not letting nominees twist in the wind.
The big question remaining is whether Democrats will seek to filibuster the exceptionally qualified Alito, and thus gain by obstruction what they failed to win, albeit narrowly, at the ballot box. Many held their fire on Roberts, finding it better to appear temperate than to lose a shrill battle, and happily sat back as Miers was shot down by friendly fire. Whether the early hyperbolic accusations gain any traction will depend largely on whether the Gang of Fourteen will argue there are “exceptional circumstances” to justify a filibuster. But the only things exceptional about Alito are his intellect, demeanor, and experience. An early bluster of a fight may help energize the liberal base, but in the end most Democratic senators will not want to risk looking like fringe zealots.
A bipartisan majority in support of Alito could help build a bridge across the political divide, demonstrating that Democrats can put competence before ideology, as many Republicans did with Breyer and Ginsburg. The initial knee-jerk reaction by liberal interest groups and prominent senators has set the charges for the destruction of that bridge. We will see if they choose to light the fuse by pursuing a filibuster that, if they had the votes to sustain it, would in turn almost surely provoke moves to change the filibuster rules. If Democrats think the public will rally around the political destruction of an extraordinary nominee, they are mistaken: It would undermine, rather than help, their prospects going into midterm elections. Unless some senators come to their senses, it may be Democrats who are belatedly asking, “What have I done?”