There's a great scene in The Simpsons set in the not-too-distant future when Marge says to Homer, "You know, Fox turned into a hardcore sex channel so gradually, I didn't even notice."Something similar could be said of the spectacle of these Supreme Court confirmation hearings. We have become so accustomed to distortions and outright lies, you'd think it's patriotic to insinuate decent nominees are racists, sexists or liars. "Oh, that's just par for the course" is no longer an observation; it's a rationalization.
Here's just one of the dozens of deceitful low blows aimed at Samuel Alito. In his opening statement Monday, Sen. Edward Kennedy, D-Mass., said Alito "has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job" among the thousands of cases that came before him. Any reasonable person hearing that would assume Kennedy was calling Alito at minimum "insensitive" or, more likely, a racist. But Kennedy was lying — albeit in a very lawyerly way.
Alito has ruled for the plaintiff in many racial discrimination cases, but he wasn't always the guy on the multi-judge appellate panels who wrote the opinions. In fact, Alito has written many opinions siding with plaintiffs "of color." Even so — as appeals court judges are wont to do — he didn't always write to the "merits" of the plaintiff's claim so much as to the relevant legal issues. So by peeling off selective opinions, Kennedy is left with the slimy insinuation that Alito is biased against minorities. But instead of, "Have you no shame, senator?" we get, "It's par for the course."
Amid all the country club decorum, there's a whiff of a show trial to these proceedings. The aim isn't to illuminate; it's to catch Alito saying something that will sound damning in an endlessly replayed sound bite. Hence the relentless campaign to get nominees to spill their guts on hot-button issues. When Justice John Roberts was in the hot seat, Sen. Charles Schumer, D-N.Y., declared into every camera in the USA — including the security cams above ATMs — that Roberts' lack of a paper trail required he divulge his views more. Now, Schumer argues that Alito's enormous paper trail obliges him to be even more responsive than Roberts was.
The reason behind all this lies in a greater deceit: the idea that the court is primarily a legal institution at all. That notion is as outré as leather piano-key neckties. Sure, it still does the wonky stuff, but the court's primary mission has been transformed. Americans have grown comfortable with the idea of judges deciding not merely tough legal questions but the tough moral and political issues as well. Why so many people think a bunch of lawyers are the best qualified professionals to answer profound moral questions is beyond me. Is it really the case that lawyers are better qualified to decide when human life begins or when it should end than are legislators or, for that matter, bus drivers?
In a sense, the no-holds-barred approach is entirely justified because we've invested judges with so much power. And with the stakes so high, politics alone determines who sits on the bench. Having lost at the polls, liberals are desperate to keep the courts on their side. This is why they are touting Sandra Day O'Connor as Babylonian King Hammurabi reincarnated, though her rulings were widely recognized as intellectually incoherent and inconsistent. Who cares about that, so long as you come out "right" on abortion and affirmative action?
Indeed, liberal jurisprudence is driven by results. The judges on the left side of the Supreme Court regularly scan around the globe to find precedents where they can't find them at home. The "living constitution" is just a fancy phrase for "making it up as you go along."
In one area, however, liberals are right (though they will change their position when a liberal is nominated). Alito, like all nominees, should be more forthcoming about his views. If we're going to have judges rule like unelected monarchs, we should at least know what they think before they get on the throne. But in a better system, the bench wouldn't be a throne in the first place.