Thursday, January 19, 2006

Eye on Senator Dick Durbin [D-IL]

With Senator Dick Durbin [D-IL] announcing today, to no one’s surprise, that he would oppose Judge Alito’s confirmation, it is timely to take a look at the Q and A portion [Runs about 12 minutes] of his January 6, 2006 press conference [See the Public Affairs Cinema]. At the press conference, I asked the Senior Senator from Illinois [And Senate Democratic Party Whip], among other questions, what he would have to hear at the confirmation hearings to cause him to vote to confirm Judge Samuel Alito [See here for a general discussion of the press conference].

Senator Durbin’s answer was also no great surprise, but worth watching. Although Senator Durbin does not quite say it, it sounds as if this vote, for him, is in large part about finding, protecting and broadening the constitutional right to privacy. At the press conference, he places the privacy right in the context of the Terry Schiavo and recent Ariel Sharon medical situations, and for political purposes that might be one of the issues on which the Democrats have their sights focused for the November, 2006 election—once they get past public corruption, reform, Jack Abramoff and national security warrantless intercepts, that is.

But, the reality is that the Alito confirmation vote, for the Democratic Party, is in large part, about abortion, which is where the funding for many Democrats and the hard left focuses. That is interesting in that Senator Durbin said, until 1989, or so, [that is, for more than the first half of his adult life and political career] that he was Pro-Life, i.e., opposed having abortion generally legal, which is where he suspects Judge Alito is and will end up, judicially, and that is what bothers Senator Durbin and his Democratic Senate colleagues, supporters and funders the most.

Of course, Judge Alito says he will decide cases dealing with abortion, without reference to his own personal views of same, but the Democrats generally do not believe that. Moreover, in general, Supreme Court nominee Alito says he will place a heavy emphasis on the wording of the Constitution and statutes when he decides cases before the Supreme Court. In short, he says, essentially, he will strive to be a strict constructionist and not a judicial activist.

This attitude does not sit well with Senator Durbin and many other Democrats. They would prefer somebody who will try to interpret or extend the Constitution in a way that protects “the little guy or little woman.” The Democrats want a justice who will protect the powerless and who has heart, as Senator Obama is wont to say. [See here]. The Democrats also say they want justices on the Supreme Court who will vote in favor of the individual, often the plaintiff-- not the Corporation [or its individual shareholders, who of course have the ownership interest in a Corporation], often the defendant.

When you hear Senator Durbin discuss his confirmation vote, it almost sounds as if he is approving a proposed Congressperson, as opposed to a Justice. That is, Senator Durbin wants to know which positions a Justice Alito would take in his judicial opinions, for whom the judge would decide cases that may come before him and whether those decisions would match up well with Senator Durbin’s preferences.

Of course, all of those items are appropriate questions and concerns for a party slating committee deciding who they would like to endorse for political office. But, for a Supreme Court nominee? Not so much.
"Public Affairs" Jeff Berkowitz, Show Host and Executive Legal Recruiter doing legal search can be reached at