Judicial Gag Rule

By BOB HERBERT

New York Times

January 16, 2006

A casual newspaper reader or television viewer might have gotten the impression that the major problem with last week's Supreme Court confirmation hearings was that some senators on the Judiciary Committee talked too much. The truth, of course, is that the nominee, Samuel Alito, talked far too little.

Senator Joseph Biden, a Delaware Democrat with designs on the presidency, was singled out for criticism. Senator Biden is unquestionably loquacious. We might as well stipulate that. But he's also a smart guy. And an occasion as important - even solemn - as a Senate inquiry into the fitness of a man to sit on the Supreme Court is as good a time as any for us to worry a little less about style points and a lot more about the substantive matters at hand.

When the president of the United States, who is abusing his power every which way he can, chooses for the Supreme Court an extreme right-winger who is all but mesmerized by the power elite, it would behoove us to pay closer attention to the substance of what Senator Biden and others are saying.

"The whole point here," said Mr. Biden, in an interview on the "Today" show, "is that nominees now, Democrat and Republican nominees, come before the United States Congress and resolve not to let the people know what they think about important issues."

The "real issue," he said, is whether the public has a right to know how Supreme Court nominees view certain crucially important matters, including matters involving threats to life and limb, or that ultimately might determine whether we will continue to live in a reasonably free society.

For example, Senator Biden asked: "Do the people have a right to know whether or not President Bush is able to go to war in Iran without Congressional approval, which his administration argues? That's a pretty basic subject. Do they have that right?

"Well, it seems to me a judge before us should say, 'Well, I think the Constitution says he does or he doesn't,' as opposed to saying, 'Well, he's bound by the Constitution,' which begs the question."

The confirmation hearings have become farcical, an obnoxious hide-and-seek ritual in which the administration's ultimate goal is to have the public know as little as possible - as opposed to as much as possible - about individuals being appointed to the most powerful court in the land. That's the opposite of the way a democracy should work.

Mr. Alito is on his way toward confirmation. He will probably vote to reverse Roe v. Wade. He will not be a champion of voting rights for minorities, or a bulwark against racial and gender discrimination. If his record is any indication, and we have very little else to go on, he will almost always side with the powerful interests, whether in government or the great corporations, against the little guy.

I can understand why the Republican Party - the party of Bush, Cheney, Frist, Abramoff and DeLay - would want such a man. But why the general public would want him is beyond me.

Sam Alito is the kind of guy who, rather than lend a helping hand, would slam the trap door on less-privileged individuals seeking opportunities similar to those he enjoyed. Nor is he trustworthy. I don't believe his story that he couldn't remember belonging to the bigoted group Concerned Alumni of Princeton, given the fact that he was happy enough in 1985 to tout his membership in the group on his application for a promotion in the Reagan Justice Department.

After Mr. Alito is confirmed, President Bush and Dick Cheney will pat their new justice on the back and help him into his judicial robes, wishing him well. He'll then get high-fives and warm embraces from his ideological soul mates, Clarence Thomas and Antonin Scalia. The Supreme Court will have tilted even more dangerously to the right and, in my view, the rights and protections of ordinary citizens - the little guys - will be in even graver peril.

The great post-World War II advances in civil rights and civil liberties, and the protection of ordinary citizens against the depredations of the rich and powerful, would never have happened without the courageous efforts of the enlightened justices who served on the Supreme Court in that era. They would surely never have happened with the likes of Alito, Thomas and Scalia making the important calls.

It will take many years to reverse this dismal tide. You might keep that in mind the next time you're considering whether to vote - or for whom to vote - in a presidential election.