By William Urban
I wonít pretend to know whether Sam Alito will be a great justice of the Supreme Court or not. But itís pretty clear from all the radio and TV Iíve heard that a great many commentators had made up their mind before he had a chance to open his mouth.
I thought Alito sounded like a pretty straight-up guy. Not stupid enough to offer his neck for a hanging, but certainly more patient than I would have been in listening to one senator after another attack his character without asking a substantive question. Senator Kennedy did everything he could except ask how well he could swim away from a sinking car.
It was a remarkable moment in our public life. In the past Illinois could boast of illustrious lawmakers from both parties, men (mostly men in those days) who could rise above party to further the common good. From Railsback to Dirksen to the two Stevensons, we had outstanding leaders. Now weíve got Dick Durbin on the judiciary committee.
Durbinís fine public speaker. A chip chopped out of the old populist block. With all the strengths and weaknesses that implies. Alas, itís also out of place in a serious venue. A little over a century ago the local editor of the Sylvan Grove paper in Kansas make a little fun of my great-grandfather, noting that he was going to vote for William Jennings Byrant, but that as a butcher he was used to handling baloney.
We had a lot of baloney in these hearings. We need a rule along these lines: when a question is more than ten minutes long, the victim should be allowed a bathroom break until the speaker finishes. What the candidate chooses to do (to follow the Lyndon Johnson rule of never passing up a toilet or just puking) is up to him. What we donít want is more candidatesí wives leaving the hearing room in tears.
Iíll admit to being in the camp defined by Roberts and Alito Ė that judges are first and foremost obliged to see that law is applied fairly and predictably. That means few surprises. I donít like chaos, which is pretty close to what we see in the San Francisco and Boston judicial circuits now. I try to remember what an effect the Taney court had in the Dred Scott decision. That was new law, saying specifically that slavery could not be forbidden in the territories, implying that slave owners could take their property into any free state they wanted, and that Blacks could never be citizens. That led us straight to Civil War.
Abortion, gay marriage and affirmation action arenít Dred Scott matters, but all the issues of the Cultural Wars put together have take us to new levels of incivility and idiocy. Granted, thatís not all of it: advertising, lobbying, new technology, the year-around campaign, the level of busyness that make it impossible for lawmakers to relax and talk with people of opposing views Ė these, and more, all contribute to the poisonous political climate that we saw in the Sam Alito hearings.
How to get out of this? Iíd start with congressional redistricting. House districts are so gerrymandered nationally that, if I heard this correctly, there was a lower percentage turnover in the House in the last election than in the Senate. It is impossible to gerrymander state lines.
This wouldnít help in Senate hearings, of course, but just as the Supreme Court is rumored to follow the elections, one might imagine that some of the superannuated senators might do so also.
The importance of the Senate judiciary committee is underscored by the fact that it is populated by the longest serving members of the Senate. I had to wonder if several were over the hill or whether their inability to come up with questions the result of not having good ones to ask?
My suspicion, formed from having seen some of these senators on numerous talk shows, leans toward early senility. If not having lost all their marbles, some of the questioners donít seem to know exactly what to make of it all. How, after all they had done, after all their good will, how was it that this candidate and not one they would have chosen, was sitting in front of them? There he was Ė not quite smiling, answering or not quite answering, but unflustered by every insult. Something was wrong, and they were angry about it.
For the rest of us, this crisis will pass. This isnít the Buchanan administration Ė no Civil War looms ahead of us, no Taney court threatening statesí rights. Roe versus Wade will be modified eventually Ė by medicine extending the time in which a fetus is viable Ė but itís unlikely to be thrown out completely. Sam Alito might have done that in 1985, but twenty years later it would throw the system into confusion. We donít need that now. The legislative system is confused enough for the other two branches of government and the media put together.
Monmouth Review-Atlas (January 26, 2006), 4.