Long after the presidency of George W. Bush has passed into the annals of American disasters, Justices John G. Roberts Jr. and Samuel A. Alito Jr. will likely still be on the Supreme Court, working to advance a highly partisan, ultraconservative agenda. This is the subject of a remarkably blunt essay in today’s Washington Post by Sen. Edward M. Kennedy.
Kennedy accuses Roberts and Alito of dishonesty before the Senate Judiciary Committee. He points out that during their testimony the prospective justices pledged that they would be even-handed jurists, humble laborers in the vineyards of the law, without a partisan or ideological bone in their respective bodies.
Once they were safely on the Supreme Court with lifetime appointments, however, their actions became something quite different. Kennedy says:
Now that the votes are in from their first term, we can see plainly the agenda that Roberts and Alito sought to conceal from the committee. Our new justices consistently voted to erode civil liberties, decrease the rights of minorities and limit environmental protections. At the same time, they voted to expand the power of the president, reduce restrictions on abusive police tactics and approve federal intrusion into issues traditionally governed by state law.
The confirmation process became broken because the Bush administration learned the wrong lesson from the failed Bork nomination and decided it could still nominate extremists as long as their views were hidden. To that end, it insisted that the Senate confine its inquiry largely to its nominees’ personal qualities.
The administration’s tactics succeeded in turning the confirmation hearings for Roberts and Alito into a sham. Many Republican senators used their time to praise, rather than probe, the nominees. Coached by the administration, the nominees declined to answer critical questions. When pressed on issues such as civil rights and executive power, Roberts and Alito responded with earnest assurances that they would not bring an ideological agenda to the bench.
After confirmation, we saw an entirely different Roberts and Alito — both partisans ready and willing to tilt the court away from the mainstream. They voted together in 91 percent of all cases and 88 percent of non-unanimous cases — more than any other two justices.
One of the lessons to be taken from this, of course, is the need for Senate Democrats to show more backbone during any future confirmation battles. But the thing I can’t get out of my mind is the fact that for most of the rest of my life, maybe for all of it, two men will sit on the United States Supreme Court who are there only because of their willingness to lie about who they truly are.
And that’s a hard thing let go of.
Update in response to the comments: I share everyone’s frustration over the failure of the Democrats in the Senate to put up an effective opposition to Roberts and Alito. In fairness, however, it should be noted that Kennedy voted against Roberts and helped lead the failed filibuster effort against Alito. So it probably isn’t fair to suggest he simply accepted their testimony at face value.