The Nuances Of The Supreme Court Nomination Process

With the recent news that Supreme Court Justice Stevens is retiring at the end of the current session, the mainstream media can engage in one of its favorites pastimes, the speculation game for the replacement and all its inside-the-beltway drama. Like most coverage from the media, this one is especially pathetic. Rather than focus on serious issues the Court deals with, we get stories about which law school candidates went to or what ethnicity a candidate’s mother is descended from and how this is somehow relevant.

The federal courts have amended the Constitution countless times without going through the prescribed amendment process set forward by the Framers. This has had detrimental consequences to our rule of law since the 1930’s. You would think these serious issues that often touch at the very fabric of the American Republic would get more mention than how a perspective candidate grew up. Alas, that would be too much to expect for our personality-driven and overly blow-dried media culture in the DC-to-New York axis.

One of George W. Bush’s worst decisions as President was his nomination of Harriet Miers to the Supreme Court. Miers is a fine public servant who served the President with distinction for many years in several capacities. The firestorm of hostility had nothing to do with her gender or even her ideological disposition, although that is all the media focused on for days. No, the principled opposition by conservatives of all stripes had to do with picking someone who could influence the direction of the court. Voting the judicially-restrained way is not enough for those of us who believe in limited and Constitutional government, but that is just what Miers would have been. Justices who have the intellectual fortitude to shape the parameters of the debate and influence others in the judiciary are not a luxury but a necessity.

Thankfully, President Bush and his senior advisors realized the error and were able to correct it with the appointment and subsequent confirmation of Justice Samuel Alito. The treatment of Alito was so obnoxious and over-the-top that they caused his wife to tear up, famously, during the confirmation hearings. I remember thinking that the venom directed at Alito meant he was a man of substance, not just a man of judicial restraint and respect for the separation of powers.

Fast forward to 2010 and we can see why the left was so outraged by his confirmation.

Recently, the high court heard oral arguments on a case involving the ability of the Christian Legal Society (CLS) to receive a portion of university fees just like the cadre of left-wing groups on most colleges. CLS has been denied access to funds due to its views on homosexuality, a convenient way for leftists to deny fees to an organization that is conservative, as they allocate resources to every left-wing and fringe outfit out there. Alito makes some comments to the legal counsel for the university law school during the oral arguments that illustrate for all to see the subjective, not legal reasons for denying CLS funds:

Justice Samuel Alito questioned whether Hastings has allowed other groups to exist on campus that did not allow all comers to join. But Garre pointed out that the Christian Legal Society had stipulated in the lower courts that Hastings did have an all-comers policy, and that registered student organizations must accept all law students as voting members regardless of status or belief.

If they didn’t believe it was true, “they shouldn’t have stipulated” to that fact, Garre said.

Alito asked Garre what the practical effects of Hastings’ policy will be for groups. Say “there is a small Muslim group; it has 10 students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say First Amendment allows that?” Alito said.

Garre said that has never happened to a group.

“CLS obviously thinks this is a real threat,” Alito said. “Now, what do you propose that they do?”

Garre said the members who are now outnumbered can leave the group.

“If hostile members take over, former members of CLS can form CLS 2?” Alito asked skeptically.

The Christian group could require knowledge of the Bible to join, Garre said. “There is a fundamental difference between excluding people on the basis of merit and excluding people on the basis of status or belief that has no connection to merit,” he said.

This is the sort of leftist legal contusion that Alito will expose during his, hopefully, long tenure on the Supreme Court. Supporting judicial restraint is nice, illustrating concise legal arguments that show the absurdity of the left in matters large and small are what Presidential legacies are all about. Thankfully, President Bush’s initial poor judgment was overridden with Alito’s appointment. I wish we could have taken a mulligan like this on some of his other mistakes.

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