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Sapere aude - dare to be wise
Monday, January 30, 2006
A victory!
Posted 5:02 PM by Luke
In my recent posts on the confirmation process of Samuel Alito, I have remained relatively silent in giving my own opinion on the matter. Now, with a successful cloture vote just having been recorded, the path is clear for a simple majority to confirm Alito tomorrow morning.

And I have no qualms declaring this a victory, not just for Republicans, but for all Americans. It is a victory because the process worked, and the growing politicization of the court succumbed to reason and a fair treatment of a fair nominee.

The vote to end debate (and avoid a filibuster) was 72-25, with over a third of the Democrats voting to give Alito an up-or-down vote tomorrow morning. Several of these same Democrats will probably vote against Alito in the actual confirmation vote, showing that they understand the gravity of using the filibuster tactic. They may disagree with some or much of Alito's ideology, but they also realize that the filibuster should only be used in truly extreme situations. Built into this realization is the notion that Supreme Court justices are to exercise an independent mind and they are not a rubber stamp of those who nominate and confirm them.

Additionally, once confirmed, if Alito sticks to a textual mode of Constitutional interpretation as expected, his presence on the Court should serve to further depoliticize it. I'll let Justice Scalia explain (from his dissent in Planned Parenthood v. Casey):
In truth, I am as distressed as the Court is -- and expressed my distress several years ago, see Webster, 492 U.S. at 535 -- about the "political pressure" directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today's opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls "reasoned judgment," ante, 505 U.S. at 849, which turns out to be nothing but philosophical predilection and moral intuition. [emphasis added]

It is my upmost hope that when the tables are turned -- when Republicans finds themselves in the minority with a Democratic president -- that they show a similar respect to the confirmation process as these brave cloture-voting Democrats have shown.

[Tomorrow I'll have a post discussing the impact that Alito could have on the Court's jurisprudence]

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