After confirmation, we saw an entirely different Roberts and Alito -- both partisans ready and willing to tilt the court away from the mainstream. They voted together in 91 percent of all cases and 88 percent of non-unanimous cases -- more than any other two justices.
A few examples help illustrate how the confirmation process failed the American people. During Roberts's hearing, I asked him about his statement that a key part of the Voting Rights Act constitutes one of "the most intrusive interferences imaginable by federal courts into state and local processes." In response, he suggested that his words were nothing more than an "effort to articulate the views of the administration . . . for which I worked 23 years ago."
Today -- too late -- it is clear that Roberts's personal view is the same as it was 23 years ago. In League of United Latin American Citizens v. Perry , the Supreme Court held that Texas's 2003 redistricting plan violated the Voting Rights Act by protecting a Republican legislator against a growing Latino population. Roberts reached a different view, concluding that the courts should not have been involved and that it "is a sordid business, this divvying us up by race."
Ok, fine and dandy. But if the Democrats want to know why people have had it up to here with them, read the above. How come there wasn't more of a fight when they were being confirmed? We ALL KNEW what they were doing. Is Kennedy saying that HE didn't know? If so, he wasn't paying attention. EVERYBODY knew. Didn't the Democrats in the Senate? If so, why didn't they filibuster, and more on point, why didn't they make that point in a public and dramatic way, a way in which it would receive press coverage?
The problem with the Democrats - including Kennedy - is that they are afraid of doing anything dramatic. Of ruffling the feathers of those dear, sweet Republicans. They're afraid of pushing the envelope, of countering right-wing extremism with anything that has any FORCE. So here you have Bush and the Republicans making a flat MOCKERY out of the nomination of a Supreme Court judge. And you what the Democrats could do to counter that? CALL IT A MOCKERY. How hard can that be? And wham - the Republicans would immediatelyon the defensive, trying to explain why the mockery wasn't REALLY a mockery.
What Kennedy should do is not write an Op-Ed after the fact. It's an interesting article, but what good does it do? If Kennedy thinks that Roberts and Alito lied during their confirmation, he should publicly raise the possiblity of whether or not what they did constitutes PERJURY, and call for a Senatorial investigation into that question. There won't BE any such investigation, of course, with the Republicans in charge, but the drama of the statement WILL get press coverage, it WILL make the Republicans' behavior grist for the public mill and a matter of public discussion, and it will shift the terms of the debate, with the Republicans actually trying to explain WHY it's acceptable to lie to the Senate.
What we REALLY need is new Democrats.