Roberts and Alito Misled Us

by Sen. Edward M. Kennedy

Just a few weeks ago, the Supreme Court finished its first term since the arrival of Chief Justice Roberts and Associate Justice Alito. Sadly, the votes and opinions of our new Justices demonstrate that President Bush finally deserves his "Mission Accomplished" banner. He has succeeded in his effort to push the Court further to the right, and away from the mainstream.

But the administration did not succeed because of the power of its ideas. Instead, it succeeded by successfully hiding its nominees' ideas from the Senate, which is the only check on a President's power to stack the courts.

As you may remember, Senate Democrats pressed the two nominees on their views on critical issues, including executive power, civil rights, and the environment. In many of these areas, the nominees had a written record that suggested that they were right-wing partisans with strong views. But the Bush administration, and too many Senate Republicans, insisted that it was inappropriate for Senators to ask what the nominees thought about these critical issues.

And when the Democrats asked the tough questions, both nominees refused to answer, except by distancing themselves from their earlier writings and insisting they would seek to be as neutral as a baseball umpire. Unfortunately, those bland reassurances proved to be enough for a majority of the Senate.

Now that they are sitting Justices, Roberts and Alito are justifying every concern we expressed when they were nominated. The men who promised to be neutral umpires look more and more like loyal members of the President's team. They have voted more than any other two members of the Court, and those votes expanded the power of the executive branch and weakened every potential check on that power, including Congress, the Judiciary, the states and the Bill of Rights. In doing so, they showed us that the confirmation process is badly broken. Before the Judiciary Committee, Roberts had acknowledged the importance of the Voting Rights Act. But Chief Justice Roberts called it "sordid." Before the Judiciary Committee, Alito ran away from his writing that the elected branches are "supreme" over the judiciary. But Justice Alito was among the minority of the Supreme Court that would have given the Bush Administration a blank check to construct a new system of military commissions without judicial or legislative oversight. As I wrote in the Washington Post today, the new term provides a wide range of examples where the testimony of Roberts and Alito simply does not match their decisions on the Court.

The Senate Judiciary Committee needs to join with all concerned to make the confirmation process work again. My article sets forth some basic principles towards an improved process, and I look forward to others' views on the issue outside of the context of a particular nominee. And Indeed, I favor reform even though I believe the next Justice will be nominated by a Democratic President and sent to a Democratic Senate. At the end of the day, all Americans share an interest in learning enough of nominees' legal views to be certain that they will make good on the simple promise etched in marble outside the Supreme Court: "Equal Justice Under Law."