Mixing messages on Alito

A Republican says he's guilty of legislating from the bench. A Democrat says his nomination shouldn't be filibustered.

Published November 7, 2005 5:13PM (EST)

The Senate won't hold confirmation hearings on Samuel Alito until January. That means means Sandra Day O'Connor, not Alito, will be on the bench to hear several abortion cases docketed for the end of this month. It also means that members of the U.S. Senate have about two months of airspace to fill.

If the first post-nomination weekend is any indication, this thing could get interesting. Amid all the vaguely hedged bets of senators like Nebraska's Ben Nelson, the more colorful characters in the nation's most august body have already starting making comments that might be considered, well, unhelpful by their ideological compatriots.

As his Democratic Party colleagues weigh their options on Alito, Delaware Sen. Joe Biden used his turn on ABC's "This Week" Sunday to say that Democrats shouldn't and probably wouldn't launch a filibuster to stop the nomination. "We should commit," he said, meaning that Democrats should stand up and be counted, yea or nay, in a roll call vote on Alito. What about a filibuster? The "probability" is it won't happen, Biden said.

Biden may be right, but taking cards off the table now probably isn't the best way to strengthen the party's hand. Even Republican Sen. John McCain said Sunday that it's "entirely appropriate" for Democrats to hold on to their options until Alito's confirmation hearings take place. But Biden has never been particularly good at sticking to the script: Earlier this year, as his colleagues were still mounting an effort to defeat the nomination of Alberto Gonzales as attorney general, Biden opened his questioning by assuring the nominee that he'd be confirmed.

Across the aisle, Biden has something of a kindred spirit in Sen. Tom Coburn, the Oklahoma Republican who's prone to blurting out his observations on everything from "rampant lesbianism" to the benefits of breast implants when the mood strikes. On "Meet the Press" Sunday, Coburn strayed far from the GOP talking points when he agreed with Tim Russert that Alito has been guilty of "legislating" from the bench. The subject was United States v. Rybar, in which Alito wrote a dissent arguing that a federal law prohibiting the sale and ownership of machine guns should be invalidated. Coburn -- like every appellate court that had addressed the issue -- said that Alito's view was wrong. "I don't think a judge has the right to make that decision," Coburn said. "I think Congress -- and that brings us back to the whole point. Those aren't decisions judges should be making. Those are decisions that legislators should be making. And that's how we've gotten off on this track is, that we allow judges to start deciding the law, new law, rather than interpret the law that the Congress -- what the -- what should have happened in that case is this [is] an area that's up for debate and needs to go back to Congress. If Congress decides that, then it should be there."

"So Judge Alito was wrong?" Russert asked. "Sure," Coburn said. "And he was legislating?" "Sure," Coburn said. Russert pressed on, asking how it was that "conservative jurists or strict constructionists" could get away with legislating from the bench. Coburn said, "Nobody's pure in any way."

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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