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Not “Reflexively pro-Government.,” but “Reflexively pro-Constitution.”

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John Cole of Balloon Juice is a talented iconoclast who comes out against Alito today, using this logic:

Again, if there is a basis for opposing Alito, I would think this [almost reflexive vote in favor of government] would be it, and not the absurd attempts to portray Roe v. Wade as good law. The complaints listed by Turley are but a sample of his rulings, and they are troubling. Despite the fact that Alito is clearly qualified to be on the Supreme Court, I don’t know if I could vote for him were I a Senator. In fact, I would probably have to say I would vote against the man, the more I learn.

This is a curious, and ultimately reflexively anti-majoritarian position given that “the government” is simply the accumlation of the laws proposed, refined and eventually passed by a bicameral legislature and signed into law by the executive, operated by a largely career civil service of more than a million overseen by a few thousand political appointees the most important of whom must pass through Senate confirmation, watched over by a judiciary that is diverse and jealous of its powers. Reflexively pro-governemnt is the same as “reflexively pro separation-of-powers and checks and balances.”

A preference for the laws and actions of the government –except in those cases where government treads on established Constitutional rights– is a preference for the politics of the many as opposed to what Justice Scalia had branded the “democratic vote of nine unelected judges,” nine justices who are pretty much products of the elites. Those nine change slowly over time in response to political tides. Bill Clinton got two. Now W is getting his second. I hope he gets a third and a fourth, and not because of a cavalier attitude towards civil liberties, but beecause of a deep regard for self-government under the sturdy dictates of the Constitution, not made-up decrees driven by elite opinion as to what is “just” and “good.”

I like elections.

Example: Would Alito be more or less likely to vote with the majority in Kelo? No more reflexively pro-government opinion can be found than Kelo’s blank check to the condeming authority, but Alito is much, much more likely in my view to be with the dissent than the majority. Is John pro-Kelo, or is he, like I suspect Alito is, anti-government in that case?

And what about the decision by the majority to sweep away ever juvenile death penalty in the United States. Clearly an “anti-government” decision, but also a profoundly anti-democratic one. Does John support that anti-government decision?

I expect Judge Alito will be part of a new majority forging a renewed understanding of the Religion Clauses, one which elevates and protects rather than marginalizes faith. That will not be pro-government, but pro-religious liberty. In most cases it will be anti-government if free exercise is upheld against secularist absolutism.

Unless John and the like-minded are proposing a set of rules which dictate that they will always win, they ought to recognize the great wisdom in the many and not encourage senators to posture rather than acknowledge that presidential elections have consequences. I am happy that the GOP did not throw such tantrums when Bill Clinton sent forward his nominees. The disturbing trend of obstructionism in ever instance displayed by the Senate Democrats is far more troubling than one justice’s alleged “reflexive vote” for the government.

What do I want? A reflexively pro-Constitution justice, one aware both of his duties, and of the limits of his office as well. I think we are getting that in Judge Alito.


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