The Corner

Re: Roberts and Alito

Fair enough.  I shouldn’t have so conclusively asserted that there are no gradations of acceptability between conservative judges as the Left perceives them.  But I maintain that whatever they may be, they are of marginal importance at best.  Far more weighty is the context in which a nomination is made — particularly any shift it portends in the ideological balance of the court. 

Justice Alito had the distinct disadvantage of being second.  The bipartisan support Ramesh mentions was more calculated than real:  By appearing reasonable on Roberts — whom they did not want to filibuster for prudent reasons Ramesh has mentioned in the past, and who therefore was going to be confirmed anyway – Democrats could more credibly posture that (a) there was real justification for the ongoing filibusters of Circuit Court nominees, and (b) there would be justification for their eventual aggressive opposition to the next second Supreme Court nominee (which they had to pledge to their base that they would fight after making the calculated decision not to fight Roberts too hard).

I don’t know how important any of this may be because I don’t know if Sen. McCain actually said the thing he’s been accused of saying.  I thought Byron’s report yesterday was very illuminating on that score — if Sen. McCain said anything similar to what’s been reported, it may very well be that he said Alito was too “controversial” not too “conservative.”  I think what made Alito controversial was the context of his nomination (second to Roberts; the alternative Bush was brow-beaten into after the Harriet Miers nomination blew up, leaving Alito vulnerable to the claim that he was the nominee of the dread Federalist Society; and meaningful shift in the ideological balance of the court).  I don’t think it had much, if anything, to do with the perception of him as more or less acceptable than Roberts, to whom he is very ideologically similar. 

For what it’s worth, I am more troubled by Sen. McCain’s position that the Constitution obligates a president to consult with the Senate about potential nominess before naming one than I am by the tempest over the alleged Alito remark.  Credible sources say McCain strongly supported Alito’s confirmation, so, while the Senator may have worried that Alito was too controversial, he obviously didn’t think Alito was too conservative.  As is often the case with Sen. McCain, that leaves us with a mixed bag:  hopeful in terms of his vision of what a good justice would be, and worrisome in terms of whether he’d actually appoint a justice who fit that vision.

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