Tuesday, November 8, 2005

Alito Is Right For the Court, Even If Bush Is Wrong

A couple months ago I spent three days in Chicago, at the fall Board of Directors meeting of the National District Attorneys Association.

Our group, which has about 7000 members who are prosecutors across America, is a highly diverse group. When I joined the board in 1997, I assumed it would be a middle-aged white guys' drinking club -- and while it's true there are a lot of middle-aged white guys, a lot of women are elected DA's and among all of us there is a remarkably broad range of political philosophies. We are a far less monolithic group than many would guess.

The current president is Paul Logli, of Rockford, Illinois. Paul is a devout Catholic and a committed Republican. I'm a Democrat and pro-choice. Yet we are good friends and share a common vision of what justice should be. We both think that we have the most morally luxurious job in the world: Our only obligation is to the truth.

So, how do we disagree strongly on subjects like abortion but fine common ground in our work?

When Harriet Miers was President Bush's candidate for Sandra O'Connor's seat on the SCOTUS, it was a pretty easy call for people of both parties. For Democrats like me she was a mediocre choice, someone with no track record of real legal accomplishment. To many of us, her only real qualification for the job was a creepy infatuation with her boss, President Bush. With a 39 percent approval rating, Bush was employing what Mike Royko called the unofficial motto of Chicago: "Where's mine?" When a man who made his name promoting Arabian horses got the top job at FEMA, should we have been surprised that someone like Meiers would end up in the chair formerly occupied by Felix Frankfurter, Robert Jackson, and Whizzer White?

Many conservatives (not necessarily my friend Paul Logli) felt cheated by Bush's choice of Miers over far more qualified conservative like Appeals Court Judges J. Michael Luttig or Janice Brown, formerly of the California Supreme Court. They figured, "Hey we elected this guy because he was going to nominate judges with core values like ours."

How many times does a sitting President get to pick not one but two judges to the SCOTUS? So why the hell give up a seat on the court to someone who thinks George Bush is the smartest guy she ever met?

Everyone was relieved when Bush withdrew Miers.

I consider myself something of a legal-political junkie but I'd never heard of Samuel Alito. I read as much as I could and was pleasantly surprised with the New York Time's profile of Alito on November 2, 2005.

This is a man who was a real trial lawyer, took on some difficult cases personally and was known to be tough on corruption as United States Attorney in New Jersey. I learned from a prosecutor in the Philadelphia District Attorney's office that Alito is no sure thing for either side. That he has voted both to strike down some death penalty sentences and to affirm others. I'm not sure what his position is on abortion, and as much as I am strongly pro-choice, I don't think it is what really matters. Litmus tests on either side are generally a bad idea.

When I ran for District Attorney the first time, 11 years ago, I was asked to come to the meeting of the county Republican central committee and answer questions along with my opponent, a man about ten years my senior who had flown fighter jets in Vietnam. In Oregon, district attorney is a non-partisan job, but I'm publicly self-identified as a Democrat so I was prepared for some interesting questions. I was not prepared for the first two questions:
What is your personal relationship with Jesus Christ?
What's your position on abortion?

My opponent went first and reassured them we was a devout Catholic who opposed abortion. I took a deep breath and answered that I did not attend church and that I was pro-choice. I went on to tell the group that if those issues defined their choice for D.A. they might as well vote for my opponent right away, but if they wanted to know my opinions on law and justice issues, I'd be happy to discuss them. We went on to talk about issues closer to the job of prosecutor.

If this had been a movie they would have gone on to endorse me. They didn't. But they also didn't endorse my opponent. I won the election with 79 percent of the vote.

I had no problem in agreeing that the NDAA should endorse the nomination of Sam Alito to the United States Supreme Court. He's clearly qualified. He's smart, he's fair, he's been vetted several times for jobs ranging from U.S. Attorney to Deputy Solicitor General to U.S. Appeals Court.

Am I sure he will vote the way I want on issues like parental notification of abortion? No. But do we really want a justice who is nominated because of a single issue? I hope not, and I hope that my fellow Democrats will save their political ammunition for a fight that is worth fighting and might possibly be won.

The NDAA's Board of Directors voted something like 90 to 1 to endorse Alito, with men and women, Republicans, Democrats, and Independents agreeing that "NDAA's endorsement reflects the organization's deep respect for Judge Alito's record on issues of criminal justice and his personal integrity. Members of the NDAA may not share all of Judge Alito's beliefs on all issues, but we feel that the nation will be well-served by his service on our nation's highest court."

1 comment:

  1. Good for you, Josh. Litmus tests are ... dumb. If we want predictable, cast-in-stone ideologues of either end of the spectrum, let's just let the president pick justices, to heck with advise and consent.

    Oh, and a couple requests for items here, if possible: one on your prepwork for the Guzek arguments (I imagine folks here might find the background on this case amazing), and also: Where do you stand on this whole "activist judges" issue (which of course is all politics, not even barely disguised politics;-)

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