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hile Senators Diane Feinstein [D-CA] and Patrick Leahy [D-VT] wistfully conjured up the nasty F-word as the constitutional "advise and consent" interrogation of Judge Samuel A. Alito turned, first, into a liberal witchhunt, then a frantic, no-holds-barred persecution of the jurist as the confirmation hearings headed down the home stretch to the wire on Friday the 13th. Feinstein later told CNN that she didn't "...see anything that really indicates a filibuster." What she meant was they—the liberals on the Judiciary Committee—had not been able to dig up anything in Sam Alito's past that would have convinced at least five of the seven Democrats on the Gang of 14 that 3rd Circuit Court of Appeals Judge Alito was coming to the high court with a rightwing agenda. Leahy indicated he would seek to delay the Judiciary Committee vote for a week. Leahy's purpose, of course, was to try to muster up the votes the liberals needed to filibuster the Alito nominationout of existence. It isn't likely he will find them since initial media straw polls indicated that Alito will receive between 65 and 70 votes—more than enough votes to kill any attempt to filibuster his nomination.

During the week-long hearing in which some 700-questions were fired at the high court nominee over a period of 18 hours before the TV cameras, Alito was given a fraction of the time (throughout the hearing) to respond. Most of the questions—which were actually statements by liberal Senators playing to their constituents in the pro-abortion industry, and to the feminist, antiwar and diversity advocacy groups—were statements designed to promote the advocacy of the left. During the week, the Senators asked Alito 7 questions about voting rights and redistricting, 8 questions about people with disabilities, 10 questions about women's rights, 25 questions about racial issues and minority rights, 59 "questions" about abortion—and over 120 questions about presidential powers. Democrats also mentioned "Vanguard"—stock owned by Alito—68 times, and Concerned Alumni of Princeton [CAP], 29 times. But the most used word—by both Democrats and Republicans alike during the hearing was the word "I." Democrats used it 1,123 times to describe their own position on the issues. Republicans used it 1,180 times. Clearly, to the six Judiciary Committee senators running for reelection this year, their positions on the issues were more important to them than Alito's. They were playing for the cameras in their home States. Republicans up for reelection this November are Orrin Hatch [UT], John Kyl [AZ], and Mike DeWine [OH]. Democrats who are up for reelection this year are Edward Kennedy [MA], Herbert Kohl [WI]—who suggested to Alito that it was important to have judges who used imagination in interpreting the rule of law to solve the social ills of the nation; and Diane Feinstein who was, speaking with CBS reporter Bob Scheiffer on Face The Nation, carefully parsed her words, saying she would not support a filibuster to keep Judge Alito's nomination from an up-and-down vote. According to Senate Minority Leader Harry Reid, the Democrats will meet on Jan. 18 to "count the filibuster votes." Schumer—one of the chief architect of filibusters against conservative judges—told Fox News Sunday that "[i]t's premature to say anything until we fully assess the record." What that means is that the liberals need to determine whether or not they have the 41 votes they need to keep Alito's name from going to the Senate floor for a vote. If they can fracture the Gang of 14 they will not hesitate to send Alito's nomination to liberal limbo. If the Democrats find 40 votes, Feinstein, who has pledged not to support a filibuster of Alito, will become the swing vote simply because she opposes his confirmation. She told Scheiffer on Face The Nation that she opposes Alito—and voted against Chief Justice John Roberts—because of his views on Roe v Wade and on presidential power.

While curbing the power of Republican presidents has been a main course on the plate of the Democrats since the Church Hearings in 1976 eviscerated the American intelligence community and weakened the United States, the number of questions—or statements posing as questions—that were fired at Alito would incorrectly lead the American people to believe that the Democrats' primary mistrust of conservative Supreme Court nominees is over the sanctity of Roe v Wade.

Nothing could be farther from the truth. The liberals on the Senate Judiciary Committee are far more concerned about Alito's conservative views on judicial interpretation than they are his conservative philosophy on abortion, affirmative action, homosexual and feminist rights because they know legal precedents over the past forty years have pretty much made the question of abortion "settled law" in America. In fact, during the roughest parts of the interrogation of Judge Alito, when Democrats repeatedly challenged him on his views on abortion, Alito sidestepped the landmines as best he could, fending off direct answers to the question by referring to "stare decisis"—settled law—68 times. It is clear that even though Alito is personally pro-life, a new legal argument that has not yet come before the high court will have to be presented before Associate Justice Samuel A. Alito would vote to overturn Roe v Wade. Furthermore, when Roe is overturned, it will likely be vacated in a 6 to 3 or 7 to 2 decision indicating that when it does fall, it will not be an ideological vote by either Chief Justice John Roberts or Alito that causes it to be overturned. Quite frankly, the economy of the United States can no longer afford the luxury of throwaway babies in a population that no longer produces enough taxpayers to keep the nation solvent.

What is not stare decisis—settled law—is the right of the US Supreme Court, or any federal court, to reinterpret the rule of law to arrive at new solutions to contemporary societal issues that impute special equality—not equalness—on the racial or cultural minorities within our society who are already construed as equal under the 14th Amendment. "Social justice" tends to make them "more equal" by compensating them in some way for perceived past injustices suffered not by them but their ancestors. Even more important today, advocates of global social justice are using imaginative leaps to tether the Bill of Rights to international case law in order to create gateways that provide links to our judicial system for the encroaching tentacles of the global village, binding the people of the United States to the emerging New World Order and the UN Declaration of Human Rights that already supersedes the Bill of the Rights in activist federal courtrooms.

The Senate Judiciary Committee hearings on Sam Alito was a high stakes political poker game that began, slowly, like a boring penny ante poker played by amateurs. Alito attempted to assure Senate Democrats that, if confirmed, he would dispense justice to rich and poor equally. "There is nothing that is more important for our Republic than the rule of law..." Although none of the liberals voiced it, Alito had inadvertently but very precisely identified the reason the liberals would attempt to derail his nomination. The following day Sen. Herb Kohl [D-WI] would take Alito to task on that very issue. In doing so, he would identify to every American citizen watching the confirmation hearings—if they were really listening—exactly why the Democrats have fought every conservative judicial nominee since Robert Bork. And while the left would have us believe it's been over the issue of abortion, in reality its always been about putting judges on the bench who are not afraid of applying more expansive, imaginative interpretations of what the Constitution says and what our laws mean as we adjust to the new realities of the world as a global community.

"Judge Alito," he began, "we heard a lot of discussion yesterday about the proper role of the judge in our system. Some said that a judge should favor neither the big guy or the little guy, but simply apply the law and not make the law. Based on what you said yesterday, I believe that you would agree generally with this characterization.

"However, to me," Kohl continued, "it's not quite so simple. Just as no two umpires call the same game exactly, no two judges see a case in exactly the same way. Laws...are often ambiguous and capable of many interpretations. Those interpretations are the result of judges with different judicial philosophies. Some judges have a more liberal judicial philosophy, while others are more conservative. And we're here trying to figure out what your judicial philosophy is. That's probably the principle point of this hearing. If the law were so simple we would not have as many 5-4 decisions. It seems to me that many of the most fundamental protections of civil rights and civil liberties that we take for granted today...have come when judges have been willing to look beyond rigid legal doctrines that prevailed at the times of those rulings. The neutral approach, that of the judge just applying the law, is very often inadequate to ensure social progress, right historic wrongs and protect civil liberties so essential to our democracy. So isn't it true, Judge Alito, that a neutral judge would never have reached these conclusions? In fact, for decades, courts did not reach these conclusions. So would you agree that these cases were rightly decided, number one; and required, number two, that judges apply a more expansive, imaginative view of the Constitution?"

"I think that the Constitution contains both some very specific provisions," Alito deftly replied, sidestepping Kohl's landmine. "And there the job of understanding what the provision means and applying it to new factual situations that come up is relatively easy. The Constitution sets age limits, for example, for people who want to hold various federal offices and there can't be much debate about what that means or how it applies. But it also contains some broad principles: no unreasonable search and seizures, the guarantee that nobody will be deprived of life, liberty or property without due process of law, equal protection of the laws. And in those instances, it is the job of the judiciary to try to understand the principle and apply it to the new situations that come before the judiciary. I think the judiciary has to do that in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution..."

"These decisions to which I just referred pushed society into new directions," Kohl shot back testily, frustrated by Alito's answers—but careful not to show his frustration. "And they came about—didn't they? As a result of the Supreme Court's willingness to look at the Constitution in perhaps a different and a new way and take a new approach and a new avenue—which is not entirely consistent with a neutral judge simply applying the law. The law is the law. It's not hard to find that out, as you somewhat suggested, that you're an umpire. A ball is a ball; a strike is a strike. I'm suggesting that it's—and I would like to hope you would agree that it's—somewhat if not a lot more complex and sophisticated. If it weren't true, we could have a lot of views here today. I think you're unique in many ways. And part of that is your complexity, your sophistication, your ability to look at the Constitution and, if necessary, see new meanings that weren't seen there before. Isn't that true? In fact, for decades, courts did not reach these conclusions. So would you agree that these cases were rightly decided, number one; and required, number two, that judges apply a more expansive, imaginative view of the Constitution?"

"Well, Senator," Alito replied, "I would never say that it is an easy process. There are some easy cases, but there are lot of very difficult cases. And once you have identified the principle, the job of applying it to particular cases is often not easy at all. But what the judge has to do is make sure that [he] is being true to the principal that is expressed in the Constitution and not to the judge's principle—not to some idea that the judge has."

Kohl's exchange with Alito was the only intelligent Democratic tête-à-tête in the interrogation of Samuel A. Alito. Kohl played well to his constituents. Kohl is one of the Judiciary Committee members up for reelection this year. Sen. Ted Kennedy is also up for election this fall. But his approach to Alito was the same as it was with any other conservative judicial nominee—he was the philosophical enemy that needed to be stopped or verbally maimed. Kennedy, like Russell Feingold [D-WI], Schumer, Patrick Leahy and Joe Biden [D-DE], painted Alito as a conservative ideologue who, like Bork in 1987, would roll back Roe v Wade, women's rights, affirmative action and, that Alito was too deferential to presidential power. Sen. Ted Kennedy chose to call Alito a racist, noting that the judge "In 15 years on the bench," Kennedy noted, Alito "...has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job." In point of fact, within minutes of making the statement, Republicans were circulating details of at least four such cases in which Alito ruled in favor of minorities. "Any student in his third week of law school would know this stuff," a GOP staffer said as he passed out the rebuttal of Alito's record. "It has to be intentional." Of course it was.

In addition, Kennedy and Feingold accused Alito of racism and misogyny because of his membership in the all-male Concerned Alumni of Princeton [CAP]—a student group that was also described as a racist organization due to an article written by H.W. Crocker III, a member of the group in the mid-1980s. In the article which appeared in CAP's publication, Crocker wrote: "People nowadays just don't seem to know their place. Everywhere one turns and Hispanics are demanding jobs simply because they're black and Hispanic, the physically handicapped are trying to gain equal representation in professional sports, and homosexuals are demanding that government vouchsafe them the right to bear children."

There is no evidence that Alito knew Crocker or, for that matter, that Alito ever attended a CAP meeting or participated in the organization's agendas. When Alito professed that he could not recall anything about the group he was accused of concealing his past from the committee. It was during this exchange, in which he was accused of being a bigot, that his wife left the room in tears. What is most interesting about that exchange is that Kennedy—who leveled the allegations that Alito's membership in CAP indicated that he was a bigot—belonged to the Owl Club—same type of all-male, anti-female organization at Harvard. The Owl Club was evicted from the Harvard campus in 1984 for refusing to admit female members.

The Democrats did themselves in when Kennedy staffers whispered to friendly reporters that Committee chairman Arlen Specter was resisting turning over the CAP documents because they contained plenty about Alito that the Republicans did not want exposed to the light of day. Against that backdrop, Kennedy demanded a congressional subpoena be issued and the offending documents be produced and examined by the committee. When the committee broke for lunch, Specter secured the documents from the Library of Congress without the need of a subpoena. Concern about Alito's membership in CAP evaporated and it became clear to the American public that the committee Democrats were on a made-up witch hunt as Kennedy & Company did their best to "bork" Alito and spike his nomination.

From the beginning it was clear that the Alito hearing would be more contentious than the Roberts' hearing since Roberts was replacing a conservative vote on the High Court and Alito would be replacing a moderate to liberal swing vote. O'Connor, like the court's four liberals: Stephen Breyer, David Souter, Ruth Bader Ginsberg and John Paul Stevens, had signed on to the globalists agenda over five years ago to apply a more expansive, imaginative view of the Constitution by imputing a special equality to minorities not afforded to the majority in order to ensure social progress, right historic wrongs and protect the civil liberties of minorities and women that the Democrats feel are so essential to the strengthening of democracy.

Alito, who has affirmed his belief in the rule of law, is viewed as a step backward in achieving this "special" equality for cultural and racial minorities. Senator Patrick Leahy showed his disappointment and frustration in the fact that Alito had successfully run the gauntlet when he said, "No president should be allowed to pack the courts, and especially the Supreme Court, with nominees selected to enshrine presidential claims of government power..." since the Democrats know that Alito's confirmation will shift the court to the right—back to the rule of law.

It is interesting to note that , historically, the Democrats, who virtually controlled both the House and the Senate, from 1933 to 1994 with only a couple of brief reprieves, saw nothing wrong with Franklin D. Roosevelt's stacking the high court with the architects of the New Deal to protect the shift from democracy to socialism in America. In 1935, as the US Supreme Court began deconstructing Roosevelt's New Deal by ruling that all of the New Deal laws violated the separation of powers and assumed for the Roosevelt executive branch a dictatorship over the economy, Roosevelt attempted to force Congress to expand the Supreme Court from 9 to 15 justices so FDR could appoint likeminded jurists to the high bench in order to protect the New Deal. When Congress rebelled against giving the president six new justices, Roosevelt tried to force any justice over 70 years of age to retire. Believing Roosevelt would succeed in politically manipulating the judiciary, the Hughes Court backed off of the New Deal and even reversed three of their decisions. In order to accommodate the president, Congress finally enacted a new pay package for federal judges, allowing Supreme Court justices to retire with full pay. Almost immediately two Associate Justices, Willis Van Devanter and George Sutherland, retired. FDR appointed Sen. Hugo Black, the bulldog who pushed the New Deal through the upper chamber of Congress as his first high court nominee. Black was nominated on Aug. 12, 1937 and confirmed five days later. On Jan. 15, 1938 FDR nominated his Solicitor General, Stanley Reed to the high court. Before the day was over he was confirmed. Felix Frankfurter, who declined the job as Solicitor General to replace Reed, was one of the founding fathers of the American Civil Liberties Union and the NAACP. But most important, he was the key architect of the New Deal and wrote most of the legislation that created the bureaucracy. He was nominated on Jan. 5, 1939 and confirmed 12 days later.

Following Frankfurter was William O. Douglas. Douglas was probably the most eccentric high court member. Like Roosevelt, Douglas was stricken with polio as a child. But he overcame the paralysis and strengthened his leg muscles by hiking in the mountains around Yakima, Washington where he was raised. He was one of three high court appointees that had no connection to the New Deal. He was nominated on March 20, 1939 and confirmed on April 4. FDR offered him the vice presidency in 1944. Douglas turned it down, preferring to stay on the high court. Had he done so, he and not Harry S. Truman would have become the 33rd President of the United States.

Following Douglas to the high court was Attorney General Frank Murphy. He was nominated on Jan. 4, 1940 and confirmed 12 days later. Harlan Stone, one of the most colorful Associate Justices of the mid-century was nominated on June 12, 1941. Stone was a US Army general. He was confirmed on June 27. Following Stone was James Byrnes, a South Carolina Senator who was known as the "ball carrier" for the New Deal. Byrnes was nominated and confirmed on June 12, 1941. When Harlan Stone died in 1941, FDR appointed Solicitor General Robert Jackson to the bench on the same day he appointed Bynes. Jackson—a legal moderate—was confirmed on July 7, 1941. The last Associate Justice appointed by Roosevelt was an avid New Dealer. DC Circuit Court of Appeals Judge Wiley Rutledge. Rutledge caught FDR's attention when he criticized the legal decisions of the pre-1937 Hughes Court and his approval of the FDR court-stacking plan. FDR rewarded Rutledge with a seat on the DC Court of Appeals. Rutledge was nominated to the high court on Jan. 11, 1943 and confirmed on Feb. 8.

FDR appointed more justices to the Supreme Court than any other president except George Washington. While the original Court had only 5 justices, none of them viewed the job as a lifetime berth. Washington nominated 14 justices over 8 years. All but one were confirmed within two days. The 14th, John Rutledge (who resigned from the high court in 1791 after two years and was re-nominated in 1795) was denied a second berth on the high court.

Senator Leahy was correct when he said: "No president should be allowed to pack the courts, and especially the Supreme Court, with nominees selected to enshrine presidential claims of government power..." It cannot—nor should not—be said that President George W. Bush packed the high court with two appointments since history has shown that no high court justice's votes are cast in stone—and two justices do not qualify as a majority. It is only when a president has the opportunity to appoint a majority of the members of a court with philosophically-aligned soulmates that such a statement has validity. The fear of the Democrats—who can count without removing their shoes and socks—is that with O'Connor gone, only four social justice advocates remain on the high court: Breyer, Stevens, Ginsberg and Souter. When Alito is confirmed by the Senate and O'Connor steps down, Associate Justice Anthony Kennedy will be the sole swing vote. While he is a centrist, he is more of a "rule of law" centrist than O'Connor who was increasing swayed by the liberals that society has a moral obligation to offset perceived historic inequities to erase the stigma of poverty from the societal underclass.

The liberal Democrat believes that the moral code of a true democracy (socialism) mandates that it's the duty of each citizen to provide for all other citizens, and that government is the natural instrument to redistribute the wealth of society. Advocates of social justice believe that current injustices to minorities should be corrected until the actual inequity no longer exists. Thus, the redistribution of wealth, power and status from the individual to the community are in the societal good. This is the core objective of the social justice advocate, and this is where the US Supreme Court—and the federal judiciary—has been headed. The liberals need judges who are willing to depart from the rule of law and take eugenic action by reinterpreting the laws based on the principles of social justice in order to ensure that all people have a similar quality of life. True social justice, the liberal falsely argues, does not penalize success or reward failure. They believe it holds all people to the same standards regardless of their race, ethnic origin, financial condition, or religious beliefs. The concept of social justice is, of course, the principles of communism. It's an experiment that failed in the Soviet Union because communism robs not only the spirit from the man but incentivism as well. Without an incentive to achieve more than mediocrity, man quickly loses any individual initiative to strive for success because the failure receives the same reward. While the socialist society may realize what is perceived as an immediate benefit—poverty is reduced and poverty-related ills to society appear to be erased—but punative taxation that is innately unfair will result in hard-workers working less and the productivity that fueled prosperity will weaken. The economy will stagnate and chronic unemployment that cannot be solved by more government will result.

Had conservative Christians not rebelled against President Bush's selection of White House lawyer Harriet Miers to replace Justice Sanda Day O'Connor, Miers would have had a relatively uneventful confirmation hearing. And a nominee even farther to the left than Harry Blackmun would have unwittingly been confirmed to the high court. Miers would have helped the social activists dilute American sovereignty—and the United States would have been introduced to communism by judicial fiat in the form of social justice activism. Denying Miers a slot on the high court, and giving that bench to a rule of law jurist unfortunately will not end the utopian attempt to rewrite the rule of law with what will be media-whipped as the Christian principles of social justice as an alternative to both capitalism and communism. Social justice will simply be implemented at the appellate level until the American people wake up and demand that judges who use forms of social justice to implement the basic tenets of communism in the United States be impeached—and Congressmen and Senators who fail to accede to the demands of the voters be voted out of office, recalled, or impeached themselves.

 

Just Say No
Copyright 2009 Jon Christian Ryter.
All rights reserved
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