It is right proper that Justice O'Connor retired today. After all, her help was particularly important in determining who would give the SOTU today. Some suggest we all should forget about that little bit of assistance ... get over it and such. Sorry, some of us have problems with that. A bit touchy about stolen elections and corrupt Supreme Court decisions. By chance, in fact, I was in the same place when the votes stopped being counted and 9/11 happened. Not quite the same thing, but ... as things turned out ... intimately connected all the same.
[I caught about sixty seconds of the SOTU before I had to turn the lying ... well, I am too young to have a stress attack or something. After suggesting he had to break the law to catch the 9/11 hijackers -- the problem was of course analyzing the information already obtained legally -- he mentioned that the U.S. could not be isolationist. Too much. This from the guy who went it alone without the U.N., is wary about international law, international treaties, and probably most countries outside of Mexico. Oh, yeah, he threw in a bit about defending our values. Quite important, I agree. Want to start doing it anytime soon?]
But, hey, I am will to get past it. Sandra should not be judged solely for that day -- she was the swing vote other days too. The day Roe was upheld ... when college based affirmative action was deemed constitutional ... various cases involving the separation of church and state, and so on. Sure, she had other days when I was less than pleased.
But, hey, she was after all a Reagan pick, a conservative party faithful sort as well. In fact, I think that day in December, another day that will live in infamy (let them count the votes Sandra, maybe your guy would have still won ... but, hey, can't take the chance ... sort of like that wiretapping, maybe), she reverted to the days when she was the state co-chair in the campaign to re-elect Nixon. Probably just a bit confused of where she was, that's all.
Anyway, I think with Alito many would join those who will miss her being on the Court. It is not a matter of the best possible choice, but what we got. And, especially given the possibilities, I am a bit less upset at the SC of my generation than some are. This from a critic. The final vote for Alito was 58-42, four Democrats voting aye, one Republican (Chafee, a moderate [though reportedly less principled than his father] due to have a hard race for re-election) voting nay. More evidence that the Democrats actually believe in a bit of dissent, while the Republicans vote in lockstep. Remember, the exception proves the rule, multiple exceptions make it a bit less a clear-cut deal.
The former is in a sense a good thing, though at times, a united front should be possible. Anyway, a historically close vote, and a bad one. It might not be the deciding factor, but when a key justice of the Supreme Court only gets on board for a lifetime appointment by a party line vote, something is wrong. It bears repeating, since people continue to deign to forget it, the last time a Democrat President selected two justices,* the President went to the minority party and heard their concerns. And, chose from among those with bipartisan support. That is why the votes were lopsided. This is so even though they honestly stated their stance on abortion ... of course, a Clinton pick was likely to be pro-choice, but darn if they actually were upfront about it. Such is the true "Ginsburg Precedent."
Clinton, for instance, voiced some desire to pick Secretary of Interior Babbitt for a seat. Interestingly, Babbitt (D) as governor appointed Justice O'Connor (now Sandra Day O'Connor) to a state appellate judgeship. Anyway, Babbitt perhaps would be a sort of Democrat O'Connor, supplying a state eyed view with a touch of environmentalism as well. "Nah," said the Republicans. Clinton, the courts not his first priority, decided to move on. The Republicans thereafter blocked over sixty of his lower court nominations once they regained control of the Senate, supplying many more slots for Bush to fill. No "up or down" votes all the time for them. The push for a "fair" vote for lower court judges and Alito this time around therefore reeked of hypocrisy.
Ruth Bader Ginsburg and Stephen Breyer were not controversial picks -- Ginsburg had a record as a centrist on the court of appeals and fought for that controversial area of law, women's rights, while Breyer had a history of working with both sides in his various legislative dealings. Likewise, his experience working with the legislative branch made him a good choice for Senate confirmation. Surely, they were liberals, though their opinions on the Court suggest moderation.
The Sandra Day O'Connor bio highlighted the point -- Breyer was someone O'Connor could work with, and his vote against one of the two college affirmative action plans reaching the Court a couple years ago suggests but one reason why. The b.s. that these two are radicals is just that. This bears repeating, even if it is obvious, since the other side repeats their misrepresentations, half-truths, and lies over and over and over again.
A final word on the failed filibuster. First, Sen. Kerry, who helped lead it, had some good floor comments ... passionately spelling out why Alito is a bad pick. The filibuster had an afterthought taste ... it should have been part of the plan all along ... but Kerry deserves a nod. Second, I do not accept the cries from the left blogsphere and such that we need to move on. Yeah, we do, but the cries came way too soon. I mentioned that the Daily Kos basically announced defeat even before the weekend. Then, last night, I even heard Sam Seder of Air America -- who was at the forefront against Sammy A-Lie-To (aka "Strip Search Sammy") take a similar stance.
We put up a good fight ... be proud (that barely half of the Dems voted against cloture, a few who did beforehand saying the whole thing was silly) ... but it is time to move on. The grassroots must have the passion of religious fervor to work so hard for such a result. Also, one needs a bit of time to mourn and vent. Can't the "time to move on" business at least wait until after the final vote?
Anyway, with Alito sworn in, today is truly the first day of the Bush Court.
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* It is often not emphasized, but one confirmation did somewhat shift the Court, the replacement of Justice Byron White. Though a Democratic pick, White was often on the conservative side of many issues with the exception of racial/sexual equality (his final dissent involved race-conscious districting and Ginsburg noted he even voted with her cause when draft was involved) and contraceptive cases. He also supported some father rights cases, including writing a dissent dealing with the right of an illegitimate father to determine his paternity.
White dissented not only in abortion cases, but in other privacy cases such as one involving a grandmother not allowed to live in a particular area with her grandchildren and also wrote the dismissive Bowers v. Hardwick opinion respecting homosexual sodomy. Still, he had some highlights, including a dissent involving nude dancing and a majority opinion responding to Justice Scalia comparing the Court's use of the Lemon Test to a horror movie monster rising from the dead (referring to Scalia's night at the cinema).
His respect for precedent did temper his support of the new breed of conservative, but Ginsburg clearly is more liberal than he. Breyer/Blackmun was more of a straight up trade. It is worth mentioning certain progressives, including Nader (less offensive at the time), were wary about him.