Friday :: Jan 27, 2006

Feinstein on the Floor


by Marie

Okay, I'll admit it that Feinstein gave a very good speech on the Senate floor in the Alito “debate.” Demonstrating that she can be a thoughtful, prepared representative of the people of California when she chooses. What a shame she doesn’t do it more often. It would have been a great speech if she had pushed three of her themes and challenged all Senators on them.

On “qualified,” she made a good case that Alito didn’t meet that test based on his writings and decisions in numerous cases. Good enough if her audience didn’t include the general public that has neither the attention span nor enough knowledge of the Constitution, law or government to process what she said. If I had written this part of her speech, I would have used a variation on what is known as “sandwiching.” Lead with what most people can comprehend and when their attention is high. Like -- Education and prior employment are indicators of qualifications for a job or position, but alone, they do not automatically lead to a declaration that the applicant is qualified. Would you hire a surgeon that graduated from a highly ranked medical school, interned at a first rate hospital and was a resident at a reputable medical center, but since being in private practice, a third of his/her patients died on the operating table, another third experienced serious post-op complication and only the lowest risk and most routine procedures the surgeon did were reasonably competent? Or what about an investment analyst with first rate educational and employment credentials that had a ten year track record of selecting and recommending stocks that performed in the bottom ten percent?

Continued with - Alito does not exhibit a reasonably consistent track record of well reasoned opinions that also have a solid legal basis. (Insert -- “sandwich” -- her actual review of his record. This is when the audience attention is lowest.) In conclusion about Judge Alito’s qualifications (audience attention recaptured) , he’s like the surgeon and investment analyst that get it wrong more often than they get it right. Decision-making is as much art as it is science, and the quality of any professional’s decision-making skills separates one factor that separates the best from the rest. Demonstrating that an individual has a poor record of decision-making is sufficient to declare that they are unqualified. Identifying the cause of the poor decision-making is not the job of the hiring committee. In that situation it doesn’t matter if the applicant is blinded by an ideological bias, was paid by an entity with a vested interest in the bad decision or is simply not very talented or skilled in his/her professional decision-making. Alito is one of the “rest,” and that’s not good enough for a Supreme Court justice, one of only nine in this country. Senators are the only ones in the position to consider all aspects of candidate for the Supreme Court. We determine if a nominee is qualified to sit on the Supreme Court. Nobody else does that for us. That’s our job. I know that I’ve done my job by carefully considering everything possible about the nominee before forming any conclusions. Can every Senator say the same thing? Can those Senators that declared Judge Alito was “qualified” before his record was available and before his confirmation hearing, say that they did their job? I can say with full confidence that Judge Alito is not qualified because I did my job.

She did well on Gonzales v. Oregon. But neglected to frame it correctly. -- Our Constitutional democracy is not limited to three federal branches that check and balance each other but includes state and local bodies of government and most importantly the people. The people have rights. The people of Oregon exercised their rights to legally protect certain end of life decisions. Judge Roberts sat before us in his hearing and said that the people had the right to privacy in end of life decisions. But last week he ruled to take those rights away from the people of Oregon. How dare he? Judge Alito declined in many ways to state his view of the rights of the people. His record should give no comfort to the people. His record tells us that he would not hesitate to strip people of their rights under the Constitution or law if they are inconvenient to his worldview. Strip search a ten year old girl without a warrant? Fine in Judge Alito’s world. Knowing that, do the people of this country want to see what else is fine in Alito’s world? There can be little doubt that women will not have reproductive privacy rights. In Planned Parenthood v. Casey, Alito ruled that women were subject to the authority of their spouses -- an opinion that Sandra Day O’Conner, they justice he seeks to replace, specifically rejected. Women are not second class citizens in America. What would they be in an America defined by Judge Alito?

Then lay down the gauntlet -- I want to conclude with a few words for my Senate colleagues. Judge Alito’s views on reproductive privacy and Congressional authority are clear. Any Senator that has claimed to be pro-choice will no longer be able to make that claim if they vote for Judge Alito. They will have told their constituents that protecting their right to choose is nothing more than an empty campaign slogan. Something to be bargained away if it’s inconvenient for that Senator. Similarly, any Senator that willingly bargains away the authority of the Senate and the House in favor of the Executive cannot claim to support the Constitution. The Senate and Congress have Constitutional duties. Any Senator that doesn’t want to perform those duties should resign. Give the job to someone that wants to do it. Not sit in this body and transfer Constitutional authority and power of Congress to the President. Not confirm judicial nominees that would do the same thing. Our Constitutional democracy cannot stand if Senators and Representatives only perform their Constitutional duties when it doesn’t present difficulties for their political party. The Unitary Executive is a theory to create an all powerful President. That’s not what the founding fathers of this country sought to create -- in fact that’s exactly what they sought to prevent. It’s one of the duties of Congress to see that it doesn’t happen. Ever. Not for President Clinton. Not for President Bush. Not for any President elected in the future.

Marie :: 10:51 AM :: Comments (3) :: TrackBack (0) :: Digg It!