John Kerry is still pushing to block Sam Alito by means of unprecedented, and unwarranted, filibuster. Kerry and fellow Democrat Ted Kennedy urge a filibuster as a “vote for history,” claiming that Judge Alito would “take the country backwards on critical issues.” It’s not clear how serious a threat this actually is, but with fellow Democrats jumping on board for fellowship, and Alito’s count still being short of three fifths, Republicans can ill-afford not to take even patent nonsense seriously.
#ad3Senator Kerry is right that elevating Judge Alito would be historic, but he misperceives why.
The key reason Sam Alito joining John Roberts would be historic is that it has a good chance of fulfilling the founding vision of a Supreme Court respectful of a limited judicial role and the separation of powers. Most Americans have never known such a court in their lifetime. In the past half century, America has often been dominated more by judge than elected representative.
Take the nation backward? No, allow the nation to proceed in the direction set by choices that more fully respect the “consent of the governed.” As James Bradley Thayer, the famed Harvard law professor, reminded us, an overbearing judiciary harms democracy itself. Constitutional disputes become seminars where judges hand down pronouncements purporting to resolve the most perplexing and contentious moral quandaries. When this happens, elected officials forfeit their own responsibility for public decision, asking not if a given policy is right or just, but only will the judges permit it?
The Court should have a lower–not a higher–public profile. Indeed, the early days of the Roberts Court have already demonstrated in three notable cases–dealing with the “hot button” topics of parental notice, state immunity, and campaign-finance regulation–that the Court under its new chief is not anxious to impose a conservative political agenda. In each case, matters were remanded for a determination inclined toward preserving as much of the legislative handiwork as possible. And should the lower courts find the Constitution to be offended, the Roberts Court has instructed that the scope of remedy should be drawn in relation to the particular facts presented, and no further.
Lincoln’s caution is still apt:
The candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
A quarter century ago, Ronald Reagan put his trust in two young lawyers, John Roberts and Sam Alito, to help him “take care that the laws are faithfully executed.” They did not disappoint him. Talk all you want Senator Kerry, these jurists are not inclined to disappoint either the Gipper’s memory–or the democratically expressed will of their fellow citizens.
In one final dangerous maneuver John Kerry is threatening a 25-year effort to reaffirm the judiciary as the “least dangerous” branch–no one counting or courting votes can afford to fail to grasp how profound a loss it would be for Kerry to prevail.
–Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He is a former constitutional legal counsel to Presidents Reagan and Bush. Kmiec is a long-time friend and former colleague of Samuel Alito.