| Pat Williams’ recent
column on the appointment of Samuel Alito to the U.S.
Supreme Court offers a Western slant on that nomination,
and does it with Pat’s usual blend of good research
and lively writing. I’d like to use this column to
invite some further discussion about the nomination, and
in particular about what it means for the West. As usual,
I’ll express my own opinions, as a way of encouraging
that discussion.
Much as I appreciate Pat’s column, I am
troubled by what I see as the all-too-pervasive tendency
to narrow Supreme Court appointment decisions to the single
issue of abortion. I believe that tendency is bad for American
politics, bad for Supreme Court confirmations, and a distraction
from the ways in which this or other nominations might usefully
be viewed from a western perspective.
It isn’t that abortion is an unimportant
issue, but it is, after all, only one issue, and by no means
the most important one with which the American people or
the Supreme Court need to concern themselves. I find it
astonishing that this particular issue should have become
the pivot around which so much of our electoral politics
and practically all of the decisions on judicial appointments
now turn.
The Senate could do the nation a great service
by bringing some much-needed balance back into the public
debate about Supreme Court nominations. In particular, Western
Senators are ideally positioned to focus attention on the
historically crucial topics of separation of powers and
federalism, and on the equally crucial role the Court has
played and almost certainly will continue to play on those
bedrock constitutional issues.
Why Western Senators in particular? A little
constitutional review might help answer that question, while
at the same time helping us get clearer about the forces
at work and the stakes in play.
We remember that the framers of the Constitution
were intensely interested in fashioning a governmental system
that could accomplish big, difficult (as well as small,
mundane) tasks, while at the same time guarding against
what they saw as the natural tendency of power to concentrate
itself and become tyrannical. They used two main mechanisms
to accomplish these dual purposes. One was the separation
of powers among the three branches of government, along
with the complex system of checks and balances among the
three. The second mechanism was federalism: the sharing
of power and responsibilities between the national and the
state governments.
Let’s start with federalism, since that
is where the West most clearly enters the picture. From
Chief Justice John Marshall’s historic decisions in
McCulloch
vs. Maryland and Gibbons
vs. Ogden to the recent Supreme Court decision about
eminent domain in Kelo
vs. City of New London, the Supreme Court has defined
and re-defined the relative powers of national, state and
local governments.
Many liberals have (understandably) come to
think of federalism as being synonymous with regressive
states-rights doctrines, as they were when the South was
the region most concerned about federalism. Westerners of
the Sagebrush Rebellion variety evoke similar concerns.
But a maturing West could revitalize the discussion
of federalism, as it has already done to a certain extent
by playing a leading role in questioning the wisdom of the
No Child Left Behind Act. Federalism can as easily wear
a progressive as a regressive face, as Westerners who worked
hard to pass medical marijuana legislation are learning
in the face of efforts by the Bush Administration to pre-empt
those state statutes with national law.
The point is that the direction the Roberts
Court ends up taking on issues of federalism is likely to
have major implications for the West. Western senators should
be leading the way in examining Alito’s record and
determining his proclivities in this crucial constitutional
arena.
The same goes for separation of power and checks
and balances issues. The framers’ very deep concern
about the concentration of power is, of course, already
a major subtext in the Alito nomination. With conservatives
in control of the executive and legislative branches of
the national government, moderates and liberals are naturally
very concerned about that control being further consolidated
for many years or even decades in the Supreme Court. But
since the appointment of a conservative seems inevitable
under the circumstances, it becomes all the more crucial
to know as much as can be known about Alito’s record
and his philosophy about separation of power issues.
I am frankly more concerned about Alito’s
seeming fondness for relatively unchecked presidential power than
I am about the likelihood of his voting to overturn Roe
vs. Wade, given his expressed and demonstrated appreciation
for upholding
established precedent.
The mere fact that the Senate must confirm Alito
before he can become a Supreme Court Justice is a vivid
reminder of the crucial role of checks and balances in our
system of government. Unchecked presidential power would
have the unimpeded right to name judges, but the framers
were determined to avoid that kind of concentration of power.
It was to the Senate above all that they gave the responsibility
of restraining executive power, by requiring Senate approval
of treaties, ambassadors, executive officers and judges.
At the same time, the Senate was designed to
be a major bastion of federalism, because each state is
equally powerful in the Senate, as they are not in the House.
It is in the Senate, therefore, that the West’s power
resides. One way that western senators can legitimately
use that power is to examine a Supreme Court nominee’s
record on crucial western issues like tribal sovereignty
or water law. Beyond that, western Senators can quite legitimately
play a leading role in making sure that the crucial constitutional
issues of separation of powers and federalism are fully
examined in every confirmation process.
That would be a service to the Court, to the
nation, and to the region. More than that, it would contribute
a healthy broadening to the discussion of judicial appointments.
And that in turn could reduce the brittleness and polarity
that has come to typify confirmation proceedings when they
focus too narrowly on a single issue.
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