A Comparison That Won't Fly

In the ongoing fight to try to cast purely political moves as blows struck in some noble cause, Senator Patrick Leahy, as is so often the case with his party, is relying heavily on his perception – or hope – of the ignorance and laziness of the American voter.

While it may be possible to find some refreshment in his admission of Judiciary Committee Democrats acting as Democrats, as opposed to United States Senators, in their opposition to the unquestionably qualified Samuel Alito and his ascension to the Supreme Court, it would be more refreshing still if he could do it without insulting the intelligence of the people he’s addressing.

In explaining his committee vote against the confirmation of Judge Alito, the man who may be the most partisan member of the Senate – it’s hard to decide between him, Ted Kennedy, and Charles Schumer – tried to cast his opposition in historic context, stating that “No president should be allowed to pack the courts, especially the Supreme Court. An overwhelmingly Democratic-controlled Senate stood up to the most popular Democrat ever elected president, Franklin Roosevelt, and we Democrats protected the independence of the Supreme Court by saying that even somebody as popular as Franklin Roosevelt could not pack the Supreme Court.”

If the Senator’s comparison is accurate, then Americans will certainly see the need for such a principled stand. After all, surely opposing an attempt to do something as nefarious as “packing the court” in the way that FDR tried is something that all Americans should be able to support, right? The problem is that the comparison doesn’t fly. Virtually anyone who would actually recognize the term “packing the court” as a reference to Roosevelt’s actions would also recognize that there is a fundamental flaw in the Senator’s attempt to link it with George Bush’s nomination of judicial conservatives to the bench.

President Roosevelt was frustrated with a Supreme Court that had overturned several pieces of New Deal legislation that he strongly supported. His “answer” to the problem was to concoct a scheme in his second term which would enable him to actually increase the number of justices on the court, allowing him to add enough jurists who would be friendly to his point of view to guarantee the sustainment of his agenda. George Bush, on the other hand, is merely exercising his prerogative, in the exercise of his constitutional duty, to appoint justices who share his judicial philosophy. It’s the difference between playing by the rules to achieve your goals as opposed to making up new rules as you go, when the existing rules don’t get you what you want. George Bush is doing the former, while Franklin Roosevelt attempted the latter.

And really, it is the latter that the conduct of Senate Democrats has more closely resembled over the past five years as well. Having failed to win the right to see judges they would prefer placed on the federal bench by playing by the rules – think “winning elections” here – they have continually tried to rewrite the constitutional rules governing this important government function – think requiring sixty votes for confirmation, or deference by the majority to the minority here.

At a time that Democrats controlled both political branches of the government, Republicans offered little opposition to the appointments of left-wing jurists Ruth Ginsberg and Stephen Breyer to the Court. Despite discomfort with the nominees, Senate Republicans recognized that Democrats had won the right to pick “their judges” at the ballot box. And what did they do to solve their problem? They got out, worked hard, and won elections in order to get that right for themselves. Would that it were that Senate Democrats would act like adults and do the same.

Instead, the American people are forced to witness demonstrations like that of Senator Leahy’s, in which he either exposes his own ignorance of the issue, or simply hopes for the ignorance of his listeners. Might this just be further evidence of the lack of confidence that Democrats have in their own agenda to win over voters?