As I mentioned, I did get to hear a few minutes of Sen. John Cornyn’s (R-Texas) opening remarks in this morning’s Alito confirmation hearing and got a good chuckle out of it. As is common among partisans of both parties, he portrayed he and his party as motivated solely by a concern for truth and justice while the other party is beholden to “special interest groups” and beset by ulterior motives. It’s this kind of pot-and-kettle rhetoric that convinces me that it is folly to take either party seriously. For instance:
If qualifications, integrity, fairness, and open-mindedness were all that mattered in this process, you would be confirmed unanimously. But we know that is not how this process works. We know that 22 Senators–including 5 on this Committee–voted against Chief Justice Roberts just a few months ago. We therefore know that you do not exactly come here today on a level playing field. I am reluctantly inclined to the view that you and any other nominee of this President for the Supreme Court start with no more than 13 votes in this Committee, and only 78 votes in the full Senate, with a solid, immovable, and unpersuadable block of at least 22 votes against you, no matter what you say, no matter what you do. That is unfortunate for you, but even worse for the Senate and its reputation as the world’s greatest deliberative body.
He does not mention the obvious fact that in addition to those 22 or so “immovable votes” – senators who will vote against virtually anyone the other party’s President would nominate for the court – there are probably twice as many such votes in his own party. Does anyone seriously doubt that the majority of Republican senators would vote for any nominee the White House would send up, regardless of their specific views or background? Had Harriet Miers’ nomination not been withdrawn, I doubt she would have gotten more than 10 Republican votes against her despite the near-universal misgivings about her qualifications for the job. This is simply party politics and to pretend to have the high road is absurd.
The question is why–with so many people from both sides of the aisle and across the ideological spectrum supporting your nomination–are liberal special interest groups and their allies devoting so much time and money to defeat your nomination? The answer, I’m afraid, is that there are a number of groups that do not want honest and fair-minded judges on the Supreme Court. Rather, they want judges who will impose their liberal agenda on the American people.
Here’s that argumentum ad labelum tactic again – label a group “liberal” and you have defeated their arguments. His answer, of course, is absurd. Why are liberal groups spending so much time and money to defeat Alito? Because they think that he’s going to cast votes in cases that are opposed to what they want. Why are conservatives groups spending so much time and money to support Alito? Because, obviously, they think that Alito is going to cast votes in cases that are in line with what they want. It really is that simple and for anyone of either party to pretend otherwise is sheer folly.
And if a nominee is going to rule the way a given politico wants, then he is obviously a man of “fairness” and “principle” with the right “judicial temperament” (whatever the hell that is); if he isn’t going to rule the way one wants, then clearly he is an “extremist” and “out of the mainstream”, a judge with an “agenda” to “impose his views on the American people.” It’s the same script, regardless of which side you’re on.
Judge Alito, these groups are trying to defeat your nomination because you will not support their liberal agenda. And the reason they oppose you is precisely why I support you. I want judges on the Supreme Court who will not use their position to impose a political agenda on the American people. I want judges on the Supreme Court who will respect the words and meaning of the Constitution, the laws enacted by Congress, and the laws enacted by state legislatures.
Unless, of course, state legislatures – or better yet, popular referenda voted by the people directly – happen to vote for something he doesn’t like, say medical marijuana or legalized assisted suicide. Then, by golly, he wants judges on the Supreme Court who will ignore the words and meaning of the Constitution and uphold Congressional authority to overrule those laws enacted by the states even when such power is clearly not given to the Congress in the Constitution (Ms. Raich, call your office).
I will give you one example of an area where I believe our Supreme Court has been rewriting the Constitution for a very long time. It is an area that is very dear to me and to many others in this country. I am speaking of the ability of people of faith to express themselves in public…
When I was the Attorney General of Texas, I argued a case in the Supreme Court called Santa Fe Independent School District v. Doe. The school district had the temerity to permit student-led, student-initiated prayer at football games, and, of course, someone sued. I repeat, this was student-led, student-initiated, voluntary prayer. The Supreme Court held by a vote of 6-3 that even this was unconstitutional. The decision led the late Chief Justice Rehnquist to remark that the Court now exhibits “hostility to all things religious in public life.” It is hard to disagree with him. Depictions and expression of views on sex, violence, crime, are all permitted virtually without limit – but religion, no!
His description of the facts of the case is highly inaccurate. In fact, the court’s ruling makes clear that what went on was not private speech but public speech:
The District argues unpersuasively that these principles are inapplicable because the policy’s messages are private student speech, not public speech. The delivery of a message such as the invocation here-on school property, at school-sponsored events, over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer-is not properly characterized as “private” speech. Although the District relies heavily on this Court’s cases addressing public forums, e. g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, it is clear that the District’s pregame ceremony is not the type of forum discussed in such cases. The District simply does not evince an intent to open its ceremony to indiscriminate use by the student body generally, see, e. g., Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 270, but, rather, allows only one student, the same student for the entire season, to give the invocation, which is subject to particular regulations that confine the content and topic of the student’s message. The majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235. Moreover, the District has failed to divorce itself from the invocations’ religious content. The policy involves both perceived and actual endorsement of religion, see Lee, 505 U. S., at 590, declaring that the student elections take place because the District “has chosen to permit” student-delivered invocations, that the invocation “shall” be conducted “by the high school student council” “[u]pon advice and direction of the high school principal,” and that it must be consistent with the policy’s goals, which include “solemniz[ing] the event.” A religious message is the most obvious method of solemnizing an event. Indeed, the only type of message expressly endorsed in the policy is an “invocation,” a term which primarily describes an appeal for divine assistance and, as used in the past at Santa Fe High School, has always entailed a focused religious message.
It is absurd to argue that an invocation that takes place as the result of an official school policy, at a school function, using school facilities and imposed upon all in attendance regardless of their views, is genuinely “student-initiated” and “student-led”. And as always, I am baffled by the insistence on the part of folks like Cornyn that if they are not allowed to impose their religous practices on those who may not subscribe to them, their right to free exercise of reliigion has someone been taken away.
Every single person at the football game is free to pray if they choose. They can gather together in the stadium in groups and pray if they like. They can hand out religious literature at the game if they want to. They can use school facilities, including the football stadium, after school hours to put on religious programs or to gather for prayer if they choose. But somehow that’s not good enough for them. They want exclusive access to the loudspeaker to make sure that everyone there, even if they don’t believe the same thing, has to sit through their religious rituals and listen to them. They want to impose on everyone there, regardless of their religious beliefs or lack thereof, and if they are denied that authority they scream “judicial tyranny!”. It’s quite absurd.