"THIS HAS turned into a political campaign. The whole process has become so politicized that I think the American people walk away more confused about the way these people stand." Thus Senator Edward Kennedy over the weekend lamented his party's inability to derail the Supreme Court nomination of Judge Samuel Alito.
Well, it is certainly true that judicial nominations have become intensely politicized. It is true that partisan operatives do their best to spin the public image of presidential nominees. And it is true that all the spinning can leave Americans with an inaccurate picture of the person chosen to sit on the court.
But that Kennedy of all people should complain about this is rich. For if anyone is to blame for the crude political distortions of the nomination process it is Kennedy, who in 1987 smeared Judge Robert Bork with a grotesque batch of lies -- that he stood for an America in which "blacks would sit at segregated lunch counters; rogue police would break down citizens' doors in midnight raids, [and] writers and authors could be censored at the whim of government."
Bork's nomination to the Supreme Court was derailed so effectively that "bork" became a verb meaning to ruthlessly savage a nominee's record in order to defeat his confirmation. And now Kennedy complains that judicial nominations are too politicized? If chutzpah were an Olympic event, he would walk away with the gold.
* * *
The Bush administration is strongly criticized for the way it pushes the envelope in claiming presidential power. On issues ranging from "signing statements" -- interpretations issued by the president of bills he signs into law -- to the treatment of enemy combatants, the administration is regularly accused of unconstitutional assertions of power.
But I see no evidence that President Bush would flout a Supreme Court ruling striking down as unconstitutional an "executive" power he had claimed -- and isn't that the key test? The White House used to argue, for example, that the president's authority as commander-in-chief empowers the military to hold an enemy combatant indefinitely, without charges or legal counsel -- even if the prisoner is a US citizen. But in Hamdi v. Rumsfeld, which involved a US-born but Saudi-raised militant seized while allegedly fighting for the Taliban in Afghanistan, the Supreme Court said no. Under the 14th Amendment, it held, a US citizen held as an enemy combatant was entitled to "a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." That was the end of it -- as soon as the court spoke, the government dropped its bid to keep Yasser Hamdi behind bars.
The government would likewise back down if the court ruled in some future case that, for example, the FBI could not do something it claimed the right to do under the Patriot Act. Or that presidential "signing statements" give the executive no leeway to ignore a law. Yes, the Bush administration is aggressive in its claims of authority. But when the Supreme Court judges those claims, the administration complies. In a nation of laws, not of men, that is just what we should expect.
* * *
Part of the assignment for my son's third-grade class was to "discuss with your parents the importance of Martin Luther King Jr.'s work," so on Sunday we went through parts of King's 1963 "I Have A Dream" speech together. I explained why King began with a reference to the Emancipation Proclamation, and what he meant in saying that "the sons of former slaves and the sons of former slave owners" should be able "to sit down together at the table of brotherhood."
I especially wanted him to appreciate King's dream of colorblindness -- the hope that his children would grow up in a nation "where they will not be judged by the color of their skin but by the content of their character." We agreed that it isn't whether people are black or white that matters, but whether they are good or bad.
Apparently that is a lesson the mayor of New Orleans has yet to learn. Ray Nagin could have marked Martin Luther King Day by recalling the colorblind outpouring of generosity that followed Katrina's destruction, when Americans opened their hearts to the victims without ever asking or caring about the race of the people they were helping. Instead, he issued a blatant racial appeal, exhorting blacks to again make New Orleans "chocolate" by outnumbering whites. "This city will be a majority African-American city," Nagin vowed. "It's the way God wants it to be. You can't have New Orleans no other way."
So much for the table of brotherhood and the content of their character. Thirty-eight years after King was shot, and we still have politicians who put skin color first. Keep dreaming, Rev. King. Keep dreaming.