Deficit of Decency

The schoolyard teaches most an instinctive distaste for bullies: people who use their position to insult and humiliate others. The person who quietly stands up to a bully, the person who prevails against mean-spirited intimidation, and the person who overcomes a bully at his own game gains a measure of sympathy. Judge Samuel Alito earned such sympathy during last week’s confirmation hearing on his appointment to the US Supreme Court.

Such Senate hearings have long ago ceased their function of gaining important information about nominees. Questions about qualifications, legal temperament, and judicial philosophy can be answered by examination of the public record, the interview of other professionals who know the nominee, and private discussions between Senators and the nominee.

The primary purpose of the hearings has degenerated to preening by Senators for the benefit their respective constituencies. That is why far more than 50% of the time is occupied by Senatorial discourses as opposed to time for answers by the nominee. As a consequence, the hearings have come to reveal for more about the Senators than they do about a prospective Supreme Court justice, what is revealed is not pretty.

We are treated to the comical spectacle of Senator Charles Schumer (D-NY) suggesting that perhaps Judge Alito is not sufficiently open-minded when everyone in the hearing room knows that Schumer’s mind is welding shut against Alito’s ascendance to the Supreme Court. From the beginning, Schumer’s mind will not be pried open by the crowbar of evidence to even consider voting for Alito.

While Schumer’s questions may have proved comical, Senator Edward Kennedy’s (D-MA) questioning of Alito during the hearings was transparently hypocritical. Given Kennedy’s rather conspicuous history of inappropriate personal conduct, his questioning of the integrity of others is embarrassing.

Even more shameful is Kennedy’s suggestion that Alito is a racist because in “Alito’s 15 years on the bench, Judge Alito has not written one single opinion on the merits in favor a person of color who alleged race discrimination in the workplace.” This carefully worded accusation is deftly designed to deceive. The record shows that Alito voted in favor of individuals of color, however, on a three-judge panel, he “writes” about one-third of the opinions. Moreover, appeals courts rule on the law and not the merits of a case. Thus, by carefully circumscribing the universe of decisions, Kennedy tried to paint Alito as a racist. Using a similar tactic of dishonesty, one could conjure negative inferences from the fact that Kennedy has never voted for an African-American for the Supreme Court. Of course, his single opportunity to do so came during the nomination of Clarence Thomas by the first President George Bush to the Supreme Court.

Ultimately, though such behavior may endear some Democratic Senators to the hard-Left, it further isolates Democratic Senators as mean-spirited partisans. As Alito quietly and politely addressed the questions posed, this picture of competence was juxtaposed against Senators fumbling case law citations. When finally the camera showed Mrs. Alito, worn out by days of personal smears against her husband, breaking down in tears and excusing herself from the hearing room, the hearings were effectively over. The Democratic Senatorial attack had failed.

Over fifty years ago, Senator Joseph McCarthy, who had bullied others, was asked by attorney Joseph Welch, “Have you no sense of decency, sir?” Last week’s hearing revealed that the Senate still retains some who would smear others in pursuit of political advantage. There remains a decency deficit in the Senate.

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