Constitutional Law and Judging

Today the Senate Judiciary Committee approved Samuel Alito's nomination on a party line vote.

Discussion of nominees over the past several months makes clear the political considerations in selecting justices. As a political scientist, I find it interesting that the political interests who stand to benefit from the nominees dispute the political considerations.

In early December, two Knight Ridder reportes published an article "Review of cases shows Alito to be staunch conservative."

Curiously, the story brought hostile reaction from the Bush White House, from Senator John Cornyn of Texas, from the Senate Republican Conference, and from the Alliance for Justice link not provided: it froze my computer last time).

Yet in today's New York Times piece, South Carolina Senator Lindsey Graham is reported to be

saddened that the vote today was strictly according to party and that Judge Alito was likely to get only a handful of Democratic votes in the full Senate. "What did you expect President Bush to do when he won?" Mr. Graham asked rhetorically.

The quote of course suggests that Mr. Bush selected a conservative. Indeed, Mr. Bush has long said he intends to appoint justices in the mold of Scalia and Thomas, presently the two most reliable conservative votes (joined last week by Chief Roberts in the Oregon assisted suicide case).

Consider, for instance, the criticism of Harriet Miers on the PBS NewsHour by John Yoo,former Justice Department Lawyer and now Berkeley Law Professor:

One thing I've been saying is that you can think of this as being a faith-based nomination, because the president is asking that Republicans and his supporters take it on faith that Harriet Miers is the kind of person who lives up to his campaign pledge that he would appoint justices like Scalia or Thomas. But Scalia and Thomas had very clear track records and public positions on constitutional law when they were nominated. And as we just saw in the clips, Harriet Miers, apparently, does not.

Similarly, after Miers' withdrawal, CNN reported last Halloween:

After Miers withdrew Thursday, ..., conservatives eagerly awaited a nominee with judicial experience and credentials similar to Justices Antonin Scalia and Clarence Thomas.

Are Americans unable to have an honest debate about the Constitution and how it should be interpreted? That question could be interpreted as critical of the motives or character of the Republicans who attacked the K-R story, but you might also consider that the question is broad enough to include the political environment (including advocacy groups) in which they operate.