The Right Coast

January 15, 2006
Bork, Alito, and the New Court
By Mike Rappaport

As Tom notes, the New York Times is not pleased with the results of the Alito Hearings. The story mentions a miscalculation on the part of the Democrats:

[Alito's success at the hearings] amounts to a repudiation of a central part of a strategy Senate Democrats settled on years ago in a private retreat where they discussed how to fight a Bush White House effort to recast the judiciary: to argue against otherwise qualified candidates by saying they were taking the courts too far to the right.
This strategy was the one that the Democrats used against Robert Bork in 1987. But the Democrats, like many commentators generally, overemphasized this event, reading it to be more important and more telling than it was.

There are least three distinctions between Alito and Bork that ended up leading to the different result:

First, when Bork was nominated, the Democrats had the Senate; with Alito, the Republicans have the Senate. This is of enormous importance. Scalia (and Rehnquist) also were confirmed when the Republicans had the Senate, a year before the Bork nomination.

Second, Alito was far more likable than Bork at the hearings and was much more skilled at answering the questions. Sadly, Bork, who is a very nice man and quite bright, appeared to be mean at the hearings and he did not give very good answers to the questions. Witness the "ink blot" explanation of the Ninth Amendment. That was only one of many weak arguments he made.

Third, Alito learned from the experience of Judge Bork. Nominees understand the risk and take a sophisticated and cautious position about what they will and won't talk about. They also appear to moderate their views, accepting, for example, Griswold.

It is understandable that the Liberal Democrats would have glorified their victory over Judge Bork, but that does not make it more significant than it was. It was a victory in a big battle in a larger war, which is still in dispute. But the Conservative Republicans appear to have won a couple of battles with Alito and Roberts.

That said, the Court may not be that much further to the right than it was a year ago. My best guess is that Roberts will be somewhat more conservative than O'Connor, but not as conservative as Rehnquist. And Alito will be more conservative than Rehnquist, perhaps some combination of Scalia and Thomas (although he could be less conservative than them). That would mean a more conservative court, but not that much more.

The key point, though, is that Roberts is likely to be quite a bit more conservative than Kennedy. While I doubt that Roberts will vote to overturn Lawrence v. Texas, I don't think he would have voted with the majority when that case was decided. So Kennedy will be the swing vote instead of O'Connor -- a clear movement to the right, but not really a dramatic one.