Original Article: http://dartreview.com/archives/2005/11/22/tdr_25_wendy_long_on_alito.php
Tuesday, November 22, 2005
Editors' Note: Wendy Long '84 (née Stone) comes from a storied family of Review editors and now serves as General Counsel to the Judicial Confirmation Network (JCN).
The Dartmouth Review: What do you think is behind the outburst against the Alito nomination?
Wendy Long: I think that behind it is that the left has been on a campaign for some time, certainly since Robert Bork in 1987, to try to defeat advocates of judicial restraint. The last generation the left has had to rely upon the judiciary to implement liberal policies that democratic majorities would not ever vote for. And that has never been as important as it is now, since that the Republicans have recaptured both houses of Congress. I am speaking of things such as preventing prayer in school, legalizing same-sex marriages, and abortions. And even more than that such as the Cuilo decision in Connecticut that ignored the due process clause in the Fifth Amendment. The essence of judicial activism is that the Court ignores things that are in the Constitution and creates things that are not in it depending on the policy preference of the sitting justices. And this president campaigned on the type of person who he would nominate to the court; he was quite clear that he wanted to change the composition of the court. And we hear a lot of arguments about how we have to have balance on the Court, we can't change the composition of the Court. Which is ridiculous because the Constitution says the president nominates Supreme Court justices and presidents always pick those who are consistent with their judicial philosophy.
TDR: It seems that the Democrats are contradicting themselves with this whole issue, by relying on liberal courts to enact things that would never get passed by even a Democratic congress, like same-sex marriage. Is anyone calling them on that?
WL: I think you have a great point there in that judicial conservatives, they are the ones that are being accused with being "out of the mainstream," while in reality its quite the opposite. And I think we point that out at every opportunity we get. We are making a bit of head-way but you are exactly right in that it's the opposite of what they're claiming. They like to speak in these very broad bromides like choice, personal liberties, freedom and being in the mainstream. But once you scratch the surface these bromides do not really mean much and it is the opposite that is being contended.
TDR: Democrats in the Senate seem to be going out of their way to block any Republican actions. How do you think that is going to affect the Alito nomination? Do you believe he will be approved, or will it be another debacle like Harriet Miers?
WL: Its actually fairly interesting because, the more moderate Democrats, and that's one of the groups JCN focuses on, Democratic senators in states that voted for President Bush, and particularly those who are up for election in the next cycle, are going to [reject Alito] at their peril and follow People For the American Way over the cliff. And contrary to what they say it would be the first time in American history that a justice of the Supreme Court has ever been filibustered. Democrats reference the example of 1968 Abe Fortas, but that is not a good example because he did not have majority support in the Senate and his nomination had not been pending very long when he withdrew it. It was not until this president that judicial nominees have been blocked at any level. It is highly politicized and it is highly unfortunate because it certainly was not this way in the past. It is a game that's only played on one side. When Ruth Bader Ginsberg [was nominated] twelve years ago, Senator Hatch said that she was not his cup of tea constitutionally- or philosophically-speaking, but the Constitution allows the president to pick nominees. And she is certainly qualified intellectually and by experience she is a person of integrity and I do not see any reason to vote against her.
TDR: What do you think really happened with the unsuccessful nomination of Harriet Miers?
WL: I think she was hit by both sides [of the aisle]. Certainly there were a number of conservatives in the legal and judicial realm who were a bit disappointed because we thought that we needed a nominee with strong credentials, a strong judicial track record, and strong experience because this is a difficult climate and a difficult confirmation process and judicial hearing. Certainly the Republican base was largely happy with her and indeed one of the main selling points being trumpeted about her was that she was a devout evangelical Christian and that she was pro-life which are all the wrong reasons for nominating someone for the Supreme Court. I think it was a good moment for conservatives, though, because it shows that they are true to what they have said and believed, and that is that someone's personal and political belief s do not matter, and the fact that she was Christian and personally pro-life all did not matter. What really mattered was her commitment, record, and faithfulness to the Constitution, and it is not to say that she did not have those things, but there was not a demonstrated track record of them. And for a judge or a justice, that is what is important, not personal or political beliefs. So I think that is really what it was all about. She could have gone forward and there was a good chance she would have been confirmed, but she realized that a better nominee could have gone forward and she did the country a service by stepping aside
TDR: Do you think we found that right nominee in Alito?
WL: Oh yes, I think he is fantastic. He is one of the best court of appeals justices in the country. He has been on that court for fifteen years, and now Chief Justice Roberts has two years experience and is a brilliant judge and lawyer. In recent years we have come to this unfortunate path because of the partisan atmosphere where we have had these stealth candidates who have no strong judicial record as a judicial conservative in order to get through the confirmation process. Judge Roberts did not do much to shatter that perception, but if everything goes well then Judge Alito will break the curse of the alleged need for "stealth candidates" and get rid of the ghost of Robert Bork. Alito has a demonstrated record of fifteen years and he is out there with a record for everyone to see and I think those are very good things.
TDR: Tell me about your time at the Review.
WL: I was sort of present at the creation of the Review and the founders were my buddies. I could have been a founder myself except that at the time I was a on-track to become Executive Editor of the Daily Dartmouth and I was caught up with the mechanics of that. Even though I love the Review and loved my friends, I wore both hats for a little while and when I finished at the Dartmouth, I helped out with the Review. I have been on the Review's board at various points in the past and my little sister [Deborah Stone '86] was editor of the Review.
TDR: How have you seen Dartmouth change?
WL: While I have not been there recently, I would say that the character and the atmosphere of the institution has changed and I think it has become very much like other schools. It has somewhat lost its identity, in terms of being a different school and character. Many other schools and universities are striving for the same thing in order to get this perfect make-up of the student body and faculty, making Dartmouth not as distinguishable from other places.
When I was first at Dartmouth, the fraternities were the social life, and there were certainly downsides of it— there was plenty of juvenile behavior. And one thing that the Review has been against is political correctness. Every silly political correctness dictate that comes down the pipe that has to be forced upon the student body. There were always some groups that wanted to advocate political correctness in the past, but now they have become this reigning orthodoxy at Dartmouth. When I was there, the Indian symbol was still used, but it was squashed when I was there. I remember when I was a little girl, everyone was dressed as a Indian and that was one of the things that attracted me to Dartmouth. I think that is one of the things that has been robbed from Dartmouth
TDR: Do you think the Wright administration is good for the College?
WL: Honestly I haven't followed him all that closely. I must say that I get various alumni mailings they sound like they are written by some PR firm. It is hard to understand what is really going on unless you read the Review of course, and it is hard for me to have an opinion.
TDR: As an alumna detached from the school, how do you feel looking back at the College?
WL: Obviously don't think its good and I am not sure how other alumni feel, but I must say that I do not think I am alone and in part the evidence of that is the recent Trustee elections, when new Trustees were elected. They, of course, are Peter Robinson '79, who is an old friend and a friend of the Review as well, and a colleague of mine in the legal field, Todd Zywicki '88. I think that a healthy skeptical critical attitude is good for any institution and particularly one that pretends to succeed in the marketplace of ideas. There is certainly hope, and I do not know to what extend that my views are shared, but if the Trustee elections are any barometer, I'm not alone.