ExclusiveO'Connor Wins Democrats' Praise, but Would She Get Their Votes Today?

As anyone who has been viewing the Supreme Court nomination hearing of Samuel Alito, Jr. has had opportunity to witness, each and every Democrat member of the Senate Judiciary Committee has praised retiring Justice Sandra Day O’Connor as a “model.” In other words, a model that Judge Alito is being measured against during these hearings — a litmus test, after a fashion — and a model which some Senate Democrats appear to believe he should emulate.

However, should Justice O’Connor be nominated today, she would likely receive few votes from those same Democrats. Justice O’Connor’s votes and opinions during her time on the Supreme Court would draw the ire of the committee members who have praised her, just as similar rulings by Judge Alito have since he was nominated. A few examples aptly demonstrate this point:

  • United States v. Lopez, 514 U.S. 549 (1995): Justice O’Connor joined Chief Justice Rehnquist’s majority opinion, which invalidated the federal ban on firearm possession in the Gun-Free School Zones Act of 1990 because it exceeded the scope of Congress’s commerce power.
  • Printz v. United States, 521 U.S. 898 (1997). Justice O’Connor joined Justice Scalia’s majority opinion, which held that the Brady Handgun Violence Prevention Act violated the 10th Amendment because the federal law required that state and local law enforcement officers conduct background checks on prospective handgun purchasers; the majority emphasized that Congress was impermissibly commandeering state executive officials to implement a federal mandate.
  • United States v. Morrison, 529 U.S. 598 (2000). Justice O’Connor joined Chief Justice Rehnquist’s majority opinion, which invalidated the civil damages provision of the federal Violence Against Women Act because it exceeded the scope of Congress’s powers under both the Commerce Clause and section 5 of the Fourteenth Amendment.
  • Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). Justice O’Connor wrote the majority opinion — joined by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas — which held that the Age Discrimination in Employment Act exceeded the scope of Congress’s power to abrogate state sovereign immunity under section 5 of the 14th Amendment.
  • Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356 (2001). Justice O’Connor joined Chief Justice Rehnquist’s majority opinion, which held that the 11th Amendment barred state employees from recovering money damages for a state’s failure to comply with Title I of the Americans with Disabilities Act of 1990.
  • Alden v. Maine, 527 U.S. 706 (1999). Justice O’Connor joined Justice Kennedy’s majority opinion, which held that Congress’s Article I powers do not include the power to subject nonconsenting states to private suits in state courts for money damages under the Fair Labor Standards Act.

    Should these aforementioned cases be available as part of her available legal work, and should Justice O’Connor be required to answer questions about these cases in front of today’s Senate Judiciary Committee, it is likely she would face just as rigorous a process as Judge Alito.

    And while some Senate Democrats will insist on asking Judge Alito to prejudge cases and issues in an effort to see how he may fit this model they praise, the American people should recognize such inquiry for what it is: an attempt to politicize the process, and to badger him to reveal personal feelings about the issues.

    This line of inquiry is unfair to the nominee, the American people, and grossly distorts the Senate’s role of providing advice and consent — nominees should not be asked to make promises to politicians as a condition of confirmation.

    Instead, the American people may rest assured that I and other of my colleagues are determined to responsibly conduct these hearings to fully investigate Judge Alito, to ensure, through careful review and thoughtful questioning, that he is well qualified and has the intellect, character, common sense, and judicial temperament to perform this job, to facilitate full and thorough and consideration, and to conduct a timely up-or-down vote on the Senate floor.