Much of the early debate about Supreme Court nominee Samuel Alito focused on abortion, one more sign of the troubling imbalance in our national political life that has affected other judicial nominations.
It isn’t that abortion is an unimportant issue, but it is, after all, only one issue, and by no means the most important one with which the American people or the Supreme Court need to concern themselves.
The Alito debate has broadened to other issues, especially his views on executive power, and the Senate will do the nation a great favor if it can bring a balance of issues to this week’s confirmation hearing and the ensuing debate. Senators from the Mountain West could play a key role.
Why Western senators in particular? That’s a complex story, which can only be oversimplified here by picturing a triangle, with the West on one side, the Senate on another, and the Supreme Court on the third. Each side joins its neighbor at a historically significant angle.
The connection between the court and the Senate is obvious and ancient, planted firmly in the constitutional requirement that judicial nominations be approved by the Senate.
The nexus between the West and the Senate is less obvious but likely to become more so in the next few years. Westerners seem to be steadily more determined to make our regional voice heard nationally. That regional energy is appropriately focused just now on the effort to create a coordinated Rocky Mountain presidential primary in 2008. In the long run, though, the West must look to the Senate even more than to the presidency to consolidate its power.
The reason, again, is rooted in the Constitution, which, by allotting every state two senators regardless of population, gives a sparsely populated region like the West inordinate leverage in the Senate. Westerners who are working across state and party lines on behalf of a Western primary should also begin exploring the value of a Rocky Mountain caucus in the Senate, where common regional concerns could be examined while agreeing to disagree where partisanship has to trump regional loyalty.
For now, the Alito nomination gives Western senators a chance to do their region and their nation a simultaneous favor by broadening the discussion to some regionally significant constitutional issues. A nominee’s grasp of the complex jurisprudence of Indian law and tribal sovereignty, or of immigration law or federal land law, are at least as important to the West as questions of spousal or parental consent to abortion.
Of even broader relevance to our region are issues of federalism and separation of powers. From Chief Justice John Marshall’s historic decision in McCulloch vs. Maryland to the recent decision about eminent domain in Kelo vs. City of New London, the Supreme Court has defined and redefined the relative powers of national, state and local governments.
The West is already revitalizing the discussion of federalism, whether by playing a leading role in questioning the wisdom of the No Child Left Behind Act, or by defending Western citizen initiatives on medical marijuana against federal pre-emption.
The direction the Roberts court ends up taking on issues of federalism will have major implications for the West, and Western senators should be leading the way in examining Alito’s record and determining his proclivities in this crucial constitutional arena.
The same goes for constitutional checks and balances and separation of power. These are already a major subtext in the Alito nomination. With conservatives in control of the executive and legislative branches of the national government, moderates and liberals are naturally concerned about that control being further consolidated in the Supreme Court. But since the appointment of a conservative is a given, it becomes all the more crucial to know as much as can be known about Alito’s record and philosophy on separation-of-power issues.
All senators should be concerned about Alito’s apparent fondness for presidential power, as displayed in his 1989 comments attacking the independent counsel statute as an infringement on executive prerogative. Given the supreme importance of the Senate to the West, our senators should be particularly vigilant about any judicial weakening of congressional power.
And this brings us to the all-important question of a potential filibuster. Every senator, of course, has to make his or her own determination about a filibuster, if that becomes a live possibility in this proceeding. For Western senators, there is an additional consideration.
Our region’s (or any other region’s) potential power in the Senate depends fundamentally on the age-old way in which Senate rules have protected the prerogatives of a minority of senators to shape the body’s deliberations. Any change in Senate rules that weakens those prerogatives will in the long run weaken the West. The “Gang of 14” agreement to preserve the filibuster rules intact – provided that the filibuster is not used capriciously – deserves strong Western support, and Sens. John McCain of Arizona and Ken Salazar of Colorado deserve our regional gratitude for their role in shaping that agreement.
Now, if the possibility of a filibuster arises in the Alito nomination, Western senators should weigh that possibility against the long-term best interests of the Senate and the West. Merely having those considerations on the table, along with other legitimate regional concerns about the nominee’s judicial philosophy, would provide a refreshing balance to a confirmation process that might otherwise be colored by the worst kind of single-issue politics.
A version of this column appeared on Headwaters News, an online news service of the Center for the Rocky Mountain West.
Daniel Kemmis is a senior fellow with the Center for the Rocky Mountain West, Missoula, Mont.
