Alito Shoots. . . He Scores!

After a bad October, November's been good to President Bush. Following a favorable mid-week score (Good guys 4; Liberals -3), the streak continued over the weekend.

Take Washington Post liberal columnist Colbert King. In Saturday's paper, he correctly cataloged conservatives' criteria for Supreme Court appointments:

To be worthy of appointment to the Supreme Court, a nominee must be scholarly, a great intellect and a possessor of sterling conservative credentials. In addition, the nominee should come equipped with a well-established constitutional philosophy, experience in constitutional law and the ability to divine what the Constitution means through analysis of its words and structure. In addition, they say, the nominee must have a proven ability to write clearly, argue incisively and have well-known opinions on judicial philosophy.

But King called that list incomplete; the absent element being. . . wait for it! . . . compassion: "Missing from the litany of legal virtues approved by the high priests is any expression of values, any awareness of the court's leavening role in society, any recognition of the court as a bulwark against the majority's worst instincts." King hammers the point by detailing the qualifications of the various lawyers who lost Brown v. Board of Education. Finally, King claimed he'd uncovered the Federalist Society's actual aim: "Unspoken, but well understood, is that to be short-listed it certainly doesn't hurt to be white, male and straight."

Nonsense. As Ed Morrissey notes, King's forgetful:

Name me one prominent proponent of originalism/conservatism who didn't have Janice Rogers Brown shortlisted for the openings on the court that eventually went to John Roberts and Samuel Alito. I guarantee King that a Brown nomination would have delighted those proponents far more than Roberts did.

And King never misses an opportunity to play the race card, here -- absent any evidence -- equating Judge Alito with segregation. The long-time columnist does an equal disservice to Brown's losing counsel: a fierce defender of Miranda rights, King apparently values the adversarial process only when it frees criminals on technicalities.

Most importantly, it's King, not conservatives, concealing his agenda, say Powerline's John Hinderaker and Paul Mirengoff in today's WaPo:

Focusing on what it means to be a "conservative" in this context highlights a basic asymmetry between how the left and the right look at the Supreme Court. Until the past few decades, nominations to the court were generally noncontroversial. The court was not viewed as a political power center, and most people assumed that a judge would affect their lives only if they happened to have a case before him. Thus, as recently as 1962, Justice Byron White was confirmed just 11 days after being nominated by President John F. Kennedy, by a unanimous voice vote in the Senate following a Judiciary Committee hearing that lasted a single morning.

What happened to turn Supreme Court nominations into mini-Armageddons? Liberals increasingly came to view the court as a legislature of last resort, where policies too liberal and too unpopular to be enacted by real legislatures could be mandated by fiat of the court's liberal majority. The right to abortion (Roe v. Wade, 1973), abolition of the death penalty (temporarily, anyway, in Furman v. Georgia, 1972), and recognition of a right to homosexual sodomy (Lawrence v. Texas, 2003) are just a few of the more high-profile liberal policies that the court has imposed in recent decades. No conservative doubts that the next item on the liberal constitutional agenda is requiring the states to recognize gay marriage.

Conservatives, on the other hand, are willing to settle for what they can get from Congress and the state legislatures, and (since the New Deal era, at least) have not viewed the court as a vehicle for imposing conservative principles on an unwilling public. Roe, for example, rests on a right to privacy that the court discovered lurking among the penumbras of various constitutional provisions. If conservatives reasoned like liberals, they could try to put the penumbras to work for them. For instance, the federal income tax could be found to violate the right to privacy because it requires taxpayers to open up their private records to the government. But no conservative argues for anything of the sort.

And King's just another liberal who can't tell results from reasoning, says lawyer and physiatrist turned columnist Charles Krauthammer in Friday's WaPo:

Alito's Casey opinion no more tells you whether he "supports" the policy of spousal notification than whether he likes foie gras with his pudding. The only thing it tells you is that based on scrupulous parsing of Supreme Court precedents -- or more particularly, of Sandra Day O'Connor's precedents on permissible restrictions on abortion -- he concluded that spousal notification met the court's own standard for constitutionality. . .

In the coming days you will hear that Alito "supports" strip searches of 10-year-olds and the private possession of machine guns. The Brady anti-gun campaign has already called Alito "Machine Gun Sammy." You will also hear that he is hostile to minorities, immigrants, women, workers, the disabled, the environment . . . you name it. These claims are based on the same distortion that we see in attacks on Alito's abortion ruling in Casey -- the deliberate confusion of a constitutional judgment (almost invariably based on the Supreme Court's own precedents) with a personal policy preference.

It was disgraceful when that same deliberate distortion was used in television ads to accuse John Roberts of "supporting" people who blow up abortion clinics. It remains disgraceful today.

Even non-lawyer Jonah Goldberg gets the Supremes better than King, on page 12 of the November 21st National Review (subscription-only):

The first question you should ask of anyone who insists that Alito (or Roberts or Scalia or Thomas) is a rabid ideologue bent on destroying liberty and joy is a simple one: Do you believe something can be wrong and constitutional at the same time? Or do you think that something can be right and unconstitutional?

This is the fundamental question separating the “left” and “right” on judges. . . Conservatives, God love ’em, actually think the Constitution means something, which is a nice way of saying it doesn’t mean everything. . .

In a nation of laws, reasons matter. If the Supreme Court had ruled in Brown v. Board of Education that “separate but equal” was unconstitutional because ducks go quack and vests have no sleeves, it would possible to applaud the result even as you condemned the reasoning behind it, right? . . .

But the proponents of a living constitution don’t want to get bogged down arguing about the meaning of the Constitution; they want to argue about right and wrong. And a good constitution is one that always upholds what is right and never countenances what is wrong. This is why liberal justices are now fishing for precedents in foreign countries, because they can’t find what they need in actual precedent or text.

These justices are lawyering themselves right out of a job. Because if the Supreme Court is there to decide what’s right and wrong rather than what’s constitutional or unconstitutional, then we don’t need lawyers on the bench at all. Surely if the questions before the Court concern what’s good and what’s bad, there are people — priests, rabbis, truck drivers, etc. — more qualified to decide such things than a bunch of lawyers.

All this was too much for Senator Kopechne (Designated Driver-Mass.) on Meet the Press this morning, according to Morrissey:

His only reservation at this point, he told MTP, was that the people who wanted the nomination of Harriet Miers withdrawn now seem so enthusiastic about Alito. If that's the basis of Kennedy's analysis, it demonstrates the shallowness of his intellect. He can't trust himself to determine the character and quality of the nominee in front of him -- a candidate for whom he has voted to confirm to the federal bench on two separate occasions -- so he instead focuses on those who support Alito in order to make a third judgment on the same candidate. . .

Why that record can't be enough for Ted to consider can only be definitively answered by Ted and his staff, but those of us who watched the Roberts hearings have a pretty good idea. Ted has no capacity for focused thought, as his mumblings and attention deficits during the hearings amply demonstrated. Expect the senior Senator from Massachussetts to have many more of those senior moments during the Alito hearings as well.

The Constitution empowers the President to name Federal judges, who take office upon consent of the Senate. No law allots liberals any imagined balance or binding Bantustan. No one promised the Democrats a Supreme Court rose garden -- except by winning the Rose Garden each leap year's November.

Finally, Article III Groupie points to Alito's best (and most subtle) decision directed to a lower-court Judge:

This district court diva, who harbors delusions of grandeur, placed large stonework lions on either side of the door to her chambers. Her neighbor down the hall, an appeals court judge, found the lions absolutely ridiculous (and ugly to boot). Shortly thereafter, he placed two hideous, plastic pink flamingos flanking the entrance to his own chambers.

The district court diva took the hint. She removed her leonine decorations sua sponte, without waiting for the mandate to issue from the appellate court. . .

In sum, Alito's better- (if not over-) qualified as a Justice -- and teammate, and bar-stool mate -- than his critics in the MSM and the rest of the party. Whether King or Kennedy, the left's without a clue about what Judges do.

Current score: Good guys 8, Liberals -5.

Edited 4:40pm