31 January 2006

Congratulations, Mr Justice Alito

In an almost-party-line 58–42 vote, the Hon. Samuel Alito has been confirmed as an Associate Justice of the United States Supreme Court. Congratulations to him, and thanks to the Hon. Sandra Day O'Connor for her many years of government service.

If I had my druthers, I would have arranged for a much less conservative (and preferably liberal) candidate to be appointed to the Court, and probably an intellectual property type who has experience doing complex litigation. I would not have been averse to appointing a professor; despite the problematic history with Justice Frankfurter, I think the Court has been too divorced from the process of creating, testing, and explicating theory for much too long.

However, I don't have my druthers. A few months back, I said:

6. The next nominee is going to be a lot more ideologically "pure" to whatever ideology the President believes is confirmable. (can't judge yet)
7. Some time after a confirmation, either memos or memoirs from White House staff will disclose that the confirmed nominee was chosen to conform to "We tried to compromise, you wouldn't, so you got this because we're vindictive assholes." (can't judge yet)

And that's really my point. I wasn't going to get a "good" candidate (from my point of view) out of this White House.1 I'll settle for the second best: A smart judge who, despite his ideological predispositions, will actually listen to what is put before him and decide on that basis to the best of his ability to put his predispositions aside. What I've seen of Justice Alito (including a couple of peripheral encounters while he was on the Third Circuit) puts him into that class.

In any event, the liberals need to regroup and move on. The problem over the last quarter of a century is that liberals—like generals and admirals—have been ready to fight the last war, with methods that might have worked in that last war. The neoconservative movement has done a good job of making sure that the battles being fought only incidentally implicate the "war on poverty" and "civil rights wars"; in the meantime, the liberal fringe in this country (of which I'm a part) has continued to concentrate on fine-tuning its strategies and tactics of the 1930s and 1960s.

None of that, though, should take away from appreciation for the efforts of Justice Alito and Justice O'Connor. The job is an incredibly hard one, and so long as someone is giving his/her best effort I can't criticize them personally. I might criticize his/her work product… but that's not the same thing.

  1. Even leaving aside ideology, the current White House (both the official occupant and his staff and cronies) has an almost aggressive disdain for intellectual property and creativity. When it has "spoken" on those issues, it has been from a purely commercial perspective… and that perspective has been itself rather warped.