This morning the United States Senate Judiciary Committee voted 10-8, perfectly along party lines, to give the nomination of Samuel Alito to the United States Supreme Court to the full Senate with a favorable recommendation.
The committee vote was not a surprise but now all eyes shift to the full Senate in anticipation of how the Senate Democrats will behavior. Will they vote in a block and watch Judge Alito be confirmed to the court? Will the party lose a couple of vulnerable Senators (Ben Nelson, Nebraska, Bill Nelson, Florida, Byron Dorgan, North Dakota...) but vote en masse sans defectors and watch Judge Alito be confirmed to the court? Or will they attempt to filibuster, air their concerns and watch Judge Alito be confirmed to the court?
Notice the trend, regardless of what Senate Democrats do; it appears that Samuel Alito will be confirmed to the nation’s highest court. The question is will he garner 56, 57 or 58 votes.
The court is currently evenly divided on the issues of race, civil liberties, privacy, presidential powers and constitutional check and balances. In recent years there have been 193 5-4 decisions, with Justice Sandra Day O’Connor, the justice Judge Alito is replacing, on the deciding side 77% of the time.
Justice O’Connor’s well staked out position in the middle of the judicial mainstream has saved myriad of programs that have assisted people of color, women and those who believe in the constitutional balance between the branches of government.
The constitutional concept of checks and balances, affirmative action, privacy, civil liberties protection and equity for the defendant in criminal cases are all in jeopardy as Judge Alito comes riding in from the more conservative judicial mainstream. He’s confirmation would shove the court to the right, fulfilling the promise of the President to appoint a more activist conservative judiciary from the appeals level to the United States Supreme Court.
This more activist conservative court will rule for a generation at least and their rulings may hold for two generations. Judging by the Mr. Alito's committee hearing, his previous rulings on the 3rd Circuit Court of Appeals or answers to the submitted questions before the hearing, presidential power and privilege will not have a backstop and efforts to diversify a privileged society will probably go the way of the Warren court.
The Warren court, named after Chief Justice Earl Warren, of the 1950’s and 1960’s laid the foundation for the progressive laws that literally changed the face of America. It ushered in an era of equality, privacy and rights theretofore unlike anything America had ever seen. From the Brown v. the Board decision (which struck down legal segregation), through Miranda v. Arizona (requiring law enforcement to give suspects their rights), Griswold v. Connecticut (which created the concept that the right to privacy is in the constitution) to Baker v. Carr and Reynolds v. Sims (the decision that cemented the idea of one person one vote) the Warren Court formed the social and political structure of the America in which we live today. No other “court” benefited America and the supposed ideals of the country like the Warren Court did during its tenure.
Despite the monumental changes brought about by the Warren Court, Judge Alito was drawn to the constitutional law in college because of his disagreement
with the Warren Court and its landmark decisions. Disagreement
Our hope is that the Roberts Court, anchored by probably Justice Alito, won’t have the same historical impact, in reverse, as the Warren Court. But if it does, we can only hope that there is some five year old who will get to college and be drawn to constitutional law because of he or she disagrees with the march to the right engaged in by the Roberts Court during the early part of the 21st century and will in fifty years coming riding in from the left and shove court in that direction.