Bench Memos

Byrd’s Repudiation Of His Fellow Democrats

Senator Byrd’s floor statement explaining why he would vote to confirm Judge Alito to the Supreme Court has a number of noteworthy passages. Although he also offered general criticism of Republicans on the Judiciary Committee, his criticism seems aimed especially at his fellow Democrats—Teddy Kennedy, in particular:

Many people and including foremost, as I say, the people of West Virginia in most uncertain terms, were, frankly, appalled by the Alito hearings. I don’t want to say it but I must. They were appalled. In the reams of correspondence that I received during the Alito hearings, West Virginians — the people I represent — West Virginians who wrote to criticize the way in which the hearings were conducted used the same two words. People with no connection to one another, people of different faiths, different views, different opinions, independently and respectively used the same two words to describe the hearings. They called them an “outrage” and a “disgrace.” . . .

It is especially telling that many who objected to the way in which the Alito hearings were conducted do not support Judge Alito. In fact, it is sorely apparent that even many who oppose Judge Alito’s nomination also oppose the seemingly made-for-TV antics that accompanied the hearings. . . . And then there were the media and the media’s contribution to the deterioration of this very important constitutional process. Mr. President, was it really necessary to subject Mrs. Alito to the harsh glare of the television klieg lights as she fled the hearing room in tears? Fighting to maintain her dignity in response to others, with precious little of their own?

Senator Byrd has also been perhaps the only Democrat to show that he understands the proper role of the courts in our system of government:

I regret that we have come to a place in our history when both political parties, both political parties exhibit such a take-no prisoners attitude. All sides seek to use the debate over a Supreme Court nominee to air their particular wish list for or against abortion, euthanasia, executive authority, freedom of the press, freedom of speech, corporate greed, and dozens of other subjects.

All of these issues should be debated but the battle line should not be drawn on the Judiciary. It should be debated by the peoples’ representatives right here in the legislative branch. However, too many Americans apparently believe that if they cannot get Congress to address an issue then they must take it to the Court. As the saying goes: “if you can’t change the law, change the judge.” This kind of thinking represents a gross misinterpretation of the separation of powers. It is the role of the Congress, the role of the legislative branch to make and change the laws. Supreme Court justices exist to interpret laws and be sure that they square with the Constitution and with law.

And Senator Byrd, as vigorous a defender of Congress’s prerogatives as anyone, declined to embrace his colleagues’ rank distortions of the unitary executive and accurately stated Judge Alito’s views on the issue.

Let’s see if this helps put an end to all the anti-Alito nonsense.

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