Nov 132005

In a Sunday editorial, the New York Times has some wise words for Democrats about Judge Alito.

The Alito nomination comes at a critical moment for the Democratic Party. With President Bush’s poll numbers plummeting, Democrats are finding a new optimism about their chances in 2006 and 2008. But to capitalize on the Republicans’ weakness, the party needs to show that it has an alternative vision for the country. As the Democrats refine their message for next year’s elections, the first thing they need to be able to say to the American people is that they did not sit by idly while the far right took over the Supreme Court and began dismantling fundamental rights and freedoms.

This is basically a kind way of calling the Dems to arms with the implied battle cry of: "Find your spines!" I have one word for the Dems: "Filibuster".

However, the problem with using the filibuster is that, absent any kind of clear evidence that Judge Alito is a nut-case, the GOP will attempt to portray it as "politics of obstruction," etc.

This is why the stories from this past week about Judge Alito’s recusal decisions are so important. Whether there was an actual conflict-of-interest or not, Alito told the Senate in 1990 that he would recuse himself from certain kinds of cases (those involving Vanguard, those involving the law firm where his sister worked, and perhaps more). Yet when those cases came before Judge Alito on the Third Circuit, not only did he not recuse himself, he protested when one party in the case called him on it.

This gives the reason that the Senate – and this should be true for a Senate controlled by any political party – to reject Judge Alito for any further post: he did not keep his word to the Senate. Whether or not he ever intended to recuse himself on those cases is irrelevant: he told the Senate he would act a certain way on the bench, and then he did not act that way, and protested when he was reminded of it.

These are not impeachable offenses, and it should be fine for Alito to retain his seat on the Third Circuit. Yet the Senate, as an instituion, cannot tolerate the promotion of judges who do not live up to their word as given to the Senate himself.

If this later comes back to scuttle the nominee of a Democratic president because that nominee also said one thing to the Senate but did another, I think I can live with that. Anyone who cannot keep simple promises made to the U.S. Senate shouldn’t be rewarded with a higher position, especially a judge. If a judge can’t keep his word, he doesn’t need to be a Justice.

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