Stuck Between Scalia and Thomas: Democrats Drop the Ball - Again

The right wing columnist for the Wall St. Journal, Daniel Henninger, in a mocking column on the Democrats' performance during the Samuel A. Alito Jr. nomination hearings called them "intellectually exhausted and politically befuddled." Overall, with some exceptional moments, his description was not that far off the mark, though he also could have applied this description to the Democrats letting through now Justices Scalia and Thomas in years past.

Justice Scalia was confirmed 98-0 with every Democrat voting for him. The two absentees were Republicans. Justice Thomas was confirmed 52-48 in a Senate controlled by Democrats when eleven Democratic Senators crossed over and voted for him, despite a record either mediocre or terrible.

It was not always this way. The Democrats rejected Nixon's nominees Judge Carswell and Judge Haynesworth and then confirmed Justice Harry Blackmun who wrote the majority opinion in Roe v. Wade. The Democrats blocked Judge Bork and then confirmed Justice Kennedy who has turned out more recently to be comparatively moderate.

Not so anymore. Judge Alito's record is clearly one that has favored in most instances big government and big business against the little guys. His judicial philosophy tends toward downgrading the role of Congress. His belief in a very powerful "unitary Presidency" should send shivers up the spines of self-described conservatives in the age of King Bush. But then they have their own version of political befuddlement these days.

When it comes to law enforcement against individuals, he has come down for extreme police power and snooping into people's privacy. Don't bet on any Justice Alito to side often with consumers and workers who are defrauded and abused by corporations. His positions on the environment have turned environmental groups against him.

When asked which sitting justice would a Justice Alito most closely resemble, Harvard Law Professor Lawrence Tribe said - somewhere between Justices Scalia and Thomas. Not much mind room in that crevice. Before the Alito hearings were over, some anonymous Democratic Senators and their aides already were telling the reporters that he would be confirmed, that there would be no filibuster and that once again the Republicans would prevail. Such comments take the heat off the liberal Republican Senators from more politically liberal states such as Maine or Rhode Island. Such comments deflate the efforts of the progressive citizen and labor groups fighting the nomination. Such comments make it easier for a Democratic Senator, Den Nelson, from Nebraska, to indicate he's voting for Judge Alito.

So now the Democrats will be saddled with what Kevin Zeese, who is running as an independent for the U.S. Senate from Maryland, called the "four horses of the apocalypse" - four partisan justices who favor executive power, corporate power, expansive law enforcement authority [but not against corporate or governmental violators], co-mingling of religion and government and minimal individual rights." "Justices Roberts, Scalia, Thomas and Alito will provide the foundation for right wing extremism for decades to come," he said.

If they were disciplined, the Democrats could have blocked all of them. Hoist by their own petards, to use the law school phrase, the Democrats continue to berate the Republicans for these Justices whom they let through by default, disorganization and lack of conviction.

The very format of the hearings helps the Republicans. Even though they obviously control the Judiciary Committee, it is a narrow majority. The Democrats should demand longer hearings - three days and short times for follow-up questioning regarding a lifetime position on the Supreme Court are ridiculous. Further, many Democrats damage their chances for longer hearings when they spend too much time talking and too little time getting more questions to and replies from Supreme Court nominees.

The panels of citizen witnesses should come before the nominee's testimony so as to provide broader and deeper frameworks for the public and the Congress. Instead, these testifiers have become an anti-climax after the nominee finishes and leaves, along with more than a few other absent Judiciary Committee Senators. It is not a little rude to invite Law Professors, Practitioners and others from long distances and treat them so curtly and cavalierly.

Chairman Arlen Specter and Senator Patrick Leahy - the senior Republican and Democrat on the Committee present themselves as impeccably fair. Yet persons who wrote and faxed requests to be witnesses, including myself, never received so much as an acknowledgement of rejection.

Moreover, the witnesses selected were not known for raising issues of corporate power, regulatory policies and the Constitution. These are major, serious and telling omissions that must gladden the omnipresent corporate lobbyists. Nor do the Senators pose questions relating to access-to-justice, such as tort law, nor to the generic constitutional questions relating to NAFTA and the World Trade Organization and their dubious authority to side-step the sovereignty of our three branches of governments with their mandatory decisions.

Before the Judge Roberts' hearings last year, I submitted over two dozen questions relating to corporate power and corporate status to the members of the Senate Judiciary Committee. There was bi-partisan disinterest in seeking Judge Roberts' views on the most powerful institutions in our country.

If you are interested, you can download a copy of these and other questions from the website

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