Bork Alito, Please

A surprisingly tough NYT editorial about Alito which starts well:

Judicial nominations are not always motivated by ideology, but the nomination of Judge Samuel Alito certainly was. President Bush’s previous choice to fill Justice Sandra Day O’Connor’s seat on the Supreme Court, Harriet Miers, was hounded into withdrawing by the far right, primarily because she appeared to hold moderate views on a variety of legal issues. President Bush placated Ms. Miers’s conservative critics by nominating Judge Alito, who has long been one of their favorites.

[…]

The White House has tried to create an air of inevitability around Judge Alito’s confirmation. But the public is skeptical. In a new Harris poll, just 34 percent of those surveyed said they thought he should be confirmed, while 31 percent said he should not, and 34 percent were unsure. Nearly 70 percent said they would oppose Judge Alito’s nomination if they thought he would vote to make abortion illegal – which it appears he might well do.

Both of these points can’t be made often enough. First of all, Bush nominated Alito as opposed to many other well-qualified candidates because he is an exceptionally reactionary judge, and the Senate can take this into account just as much as the President can. And second, the public accepts this. It is only people who are conservative hacks and/or a few solipsistic law professors who think that formal qualifications are the only criterion that the Senate can take into account. Allow me to repeat what I wrote earlier about the unfair bad rap that the Bork hearings–which I’m sure are going to be brought up a lot–have gotten:

Since the term came up, a brief comment about “Borking.” One odd thing is that Bork’s failed nomination to the Supreme Court has become the definition of a bad nomination process, when in fact it was a case where the process worked as it should work. The Thomas nomination, in which legitimate questions about the substance of his judicial philosophy became eclipsed by personal issues of extremely marginal relevance to the position we was nominated for, represents a bad process. But the Bork nomination involved a substantive discussion of judicial philosophy without diversionary “character” questions. He was appointed for political reasons, of course, and rejected for political reasons, and in both cases the reaction was perfectly appropriate. It was Reagan’s right to appoint somebody who believes that the Court’s entire line of privacy cases is wrongly decided and that the federal government can legally segregate and that the 1st Amendment should be read extremely narrowly. And it was the Senate’s prerogative to reject someone with these views. The system worked as it should.

Obviously, the hearing will differ in one crucial respect: Bork, at least, had the integrity to state his views, and people could evaluate whether they accepted his jurisprudence and found his confirmation conversions credible, while Alito will just give a lot of evasive non-answers. But Alito, like Bork, is qualified judge chosen because of his very right-wing views, and like Bork he should not be confirmed by the Senate.