The Alito Shuffle

Cohen: Alito Hearings Will Be Passionate, But Outcome Is Set

(CBS) 
In the end, whether it is abortion rights or voting rights or terror law cases, Judge Alito will have to bear the burden of convincing some Committee members that his overwhelming conservative voting record as a federal appeals court judge isn't the result of rigid, fixed ideology but rather a reasoned and consistent approach to the law. I know, I know - one person's "fixed ideology" is another person's "consistent approach to the law." It'll be up to Judge Alito to find the difference there and then sell it to those skeptics on the Judiciary Committee who see in Judge Alito precisely the sort of High Court game-changer they have feared for decades.

Remember, Judge Alito will replace a justice, Sandra Day O'Connor, who often was the pragmatic and consensus-building fifth and deciding vote in some of the most contentious cases of her time. And yet Judge Alito, his lengthy record reflects, is precisely who the president said he was when he nominated him: a staunchly conservative jurist who will start off his tenure on the Court to the right of where his predecessor is as she leaves it. Judge Alito also is precisely the sort of judge the president said that he would nominate to the Supreme Court during the 2004 election, and precisely the type of Justice that candidate John Kerry warned against during his campaign. Bush won the election. He gets to pick. The Republicans maintained control of the Senate. The majority rules. It's as simple as that.

This nomination has never been about competence. The American Bar Association declared last week that Judge Alito is "well-qualified" to become the next Associate Justice of the High Court but we didn't really need the lawyers at the ABA to tell us what we already know. Judge Alito is super bright, has been on the 3rd U.S. Circuit Court of Appeals bench for over a decade, and is in the mainstream of judicial doctrine so long as you define mainstream broadly. Questions about his ethics are false starts. If he were as unethical as some of those critics now claim, he long ago would have been outed by his fellow judges or the lawyers who practice before him. Of course he is "well-qualified." He's no Harriet Miers.

Instead, this nomination, like many nominations, is about raw political power. A Democratic President would have selected another candidate. And if the Senate were in Democratic hands President Bush would no doubt have selected a jurist whose record was much more moderate and temperate than is Judge Alito's. But in the end all the Committee Democrats will be able to do is ask their questions, try to get a few candid answers here and there from the nominee, exact their pounds of political flesh from the president, and hope above all to highlight for the nation just how extraordinary are the legal positions this administration is taking, even as it argues for decreased judicial review of those positions.

So Judge Alito soon will become Justice Alito, not because he necessarily represents the legal views of a majority of Americans, or because his vision of the nation's legal landscape is particularly profound, or compassionate, or just. He will be the next justice because his patrons have the votes to make it so. If you are fearful today of what Judge Alito might do once he gets to the Court, remember that feeling today and every day until this November, or until November 2008, when you get a small vote in determining who the next Justice may be. The genesis of these monumental choices and historic moments always begins at the ballot box.