Eminent Domain

Opinion Journal has this look at the pending confirmation of Judge Alito and what that means for the Court. I've heard that Kerry (who flew back from Switzerland) has the support of a few more senators for his filibuster. Senator Reid says that he supports it, but the votes aren't there to sustain it. Basically, this is a political posturing maneuver by some of the Senate Democrats to out-Kos the others. I don't think the rest of the Democrats are dumb enough to block a cloture vote. They'll let Kerry have his moment then move on. On to the Opinion Journal piece...

In this sense, the Alito-Roberts ascendancy also marks a victory for the generation of legal conservatives who earned their stripes in the Reagan Administration. The two new Justices are both stars of that generation--many others are scattered throughout the lower courts--and they are now poised to influence the law and culture for 20 years or more. All those Federalist Society seminars may have finally paid off. Call it Ed Meese's revenge.

One of the goals of legal conservatives (whatever name you want to call them) was to have a deep bench of potential nominees ready. The old guard of the leadership knew that a time would come (now) when vacancies would open on the Court. There had to be a long list of experienced, intelligent, and credentialed candidates. I've looked at a chunk of the list recently. A few decades ago, the Republican party decided to take the federal courts seriously and work to get strong jurists onto those courts. Chief Justice Roberts and Judge Alito are the fruits of that work.

The liberal interest groups that devised the filibuster strategy and wrote the anti-Alito talking points for Senators Ted Kennedy and Patrick Leahy thus contributed as much as anyone to Judge Alito's confirmation. Congratulations, Ralph Neas. It's your finest hour.

People like Ralph Neas have done more damage to their cause than good. It's the "cry wolf" syndrome. Neas and friends attacked then-Judge Roberts harshly. One of their ads (which they were forced to pull) claimed that Roberts sympathized with abortion clinic bombers. This is an over the top statement, but it's not isolated. The statements come one after another, on every issue, on every nominee. People start to tune them out. These interest groups get ignored by everyone but the people who already support them.

This does not mean this will be a "conservative" Court, however. Four reliable liberals remain, as well as the protean Justice Anthony Kennedy, who has been making his own migration to the cultural left and the make-it-up-as-you-go jurisprudence exemplified by Lawrence v. Texas (on state laws on homosexuality) and Roper v. Simmons (on the juvenile death penalty). You can bet the press corps and liberal politicians will now apply their carrot-and-stick strategy of praise and castigation to push Justice Kennedy further to the left and retain a five-vote liberal majority.

Justice Kennedy has been drifting further to the center in recent years. He's going to relish his position as the new O'Connor. Maybe he'll even wear that frilly collar-thing that O'Connor wore. Until there is a retirement by one of the liberals, it's Kennedy's Court for many issues. It will be interesting to see if either Roberts or Alito will be able to persuade him to the conservative side more often than has occurred in the past. Justice Scalia's biggest problem in the past has been pushing away the moderates. I love reading his opinions, especially the fiery ones, but they don't do much to build a 5 vote majority. We're looking at very interesting times in Con Law in the near future.