When the president hastily nominated Judge Samuel Alito to the Supreme Court last fall, with no visible bipartisan consultation, we commented that he had chosen to divide rather than unite the Senate and the country in his haste to placate conservatives unhappy with his earlier nomination of Harriet Miers. Nothing that's come to light since then has changed our opinion: Judge Alito is a decent and well qualified jurist, but represents a large step towards a conservative ideological reshaping of the Supreme Court at a time when it is teetering on the edge of a variety of decisions that could erode or overturn important constitutional rights.
Nobody can claim surprise that President Bush acted in this way; he has repeatedly promised to name justices in the mold of conservative judicial activists Antonin Scalia and Clarence Thomas (and perhaps Chief Justice Roberts, if his alignment with Scalia and Thomas on the landmark decision on Oregon's assisted-suicide statute is any indication).
And Samuel Alito appears to fill the bill. Despite his artfully expressed testimony in the Senate Judiciary Committee, it's clear Judge Alito embraces an "originalist" view of constitutional interpretation, along with the recent, unbalanced conservative tendency to police congressional powers but not executive powers.
Democrats in the Senate, and elsewhere, have no obligation to help Bush redeem this divisive campaign pledge. Given Judge Alito's long and consistent record of conservative activism on and off the bench, it is prudent to oppose this confirmation as a matter of principle, reflecting the gravity of a lifetime appointment to a closely divided Court.
But we stress this last point: in the Senate debate on this confirmation, Democrats should focus on Alito's judicial philosophy, and discard the personal attacks that figure so prominently in some of the interest-group campaigning against his confirmation. Such attacks at best distract from the principled case against Alito; at worst, they undermine it.
For the same reason and others, we do not think Senate Democrats should try to filibuster this confirmation. A filibuster is certain to fail; indeed, the Senate is certain to respond to a filibuster by outlawing them permanently in judicial confirmations. Using this weapon now would stake Democrats to the implausible argument that Alito's inevitable confirmation is the most egregious act of the Bush administration and the Republican Senate, going into a critical midterm election.
The second-best way for Democrats to avoid still more Alitos on the Court is to make major gains in the Senate this November. And the best way is to win the White House in 2008.