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Much of the early debate about Supreme Court nominee Samuel
Alito focused on abortion, one more sign of the troubling
imbalance in our national political life that has affected
other judicial nominations.
It isn't that abortion is an unimportant issue, but it is,
after all, only one issue, and by no means the most important
one with which the American people or the Supreme Court need
to concern themselves.
The Alito debate has broadened to other issues, especially
his views on executive power, and the Senate will do the
nation a great favor if it can bring a balance of issues to
this week's confirmation hearing and the ensuing debate.
Senators from the Mountain West could play a key role.
Why Western senators in particular? That's a complex story,
which can only be oversimplified here by picturing a triangle,
with the West on one side, the Senate on another, and the
Supreme Court on the third. Each side joins its neighbor at a
historically significant angle.
The connection between the court and the Senate is obvious
and ancient, planted firmly in the constitutional requirement
that judicial nominations be approved by the Senate.
The nexus between the West and the Senate is less obvious
but likely to become more so in the next few years. Westerners
seem to be steadily more determined to make our regional voice
heard nationally. That regional energy is appropriately
focused just now on the effort to create a coordinated Rocky
Mountain presidential primary in 2008. In the long run,
though, the West must look to the Senate even more than to the
presidency to consolidate its power.
The reason, again, is rooted in the Constitution, which, by
allotting every state two senators regardless of population,
gives a sparsely populated region like the West inordinate
leverage in the Senate. Westerners who are working across
state and party lines on behalf of a Western primary should
also begin exploring the value of a Rocky Mountain caucus in
the Senate, where common regional concerns could be examined
while agreeing to disagree where partisanship has to trump
regional loyalty.
For now, the Alito nomination gives Western senators a
chance to do their region and their nation a simultaneous
favor by broadening the discussion to some regionally
significant constitutional issues. A nominee's grasp of the
complex jurisprudence of Indian law and tribal sovereignty, or
of immigration law or federal land law, are at least as
important to the West as questions of spousal or parental
consent to abortion.
Of even broader relevance to our region are issues of
federalism and separation of powers. From Chief Justice John
Marshall's historic decision in McCulloch vs. Maryland to the
recent decision about eminent domain in Kelo vs. City of New
London, the Supreme Court has defined and redefined the
relative powers of national, state and local governments.
The West is already revitalizing the discussion of
federalism, whether by playing a leading role in questioning
the wisdom of the No Child Left Behind Act, or by defending
Western citizen initiatives on medical marijuana against
federal pre-emption.
The direction the Roberts court ends up taking on issues of
federalism
will have major
implications for the West, and Western senators should be
leading the way in examining Alito's record and determining
his proclivities in this crucial constitutional arena.
The same goes for constitutional checks and balances and
separation of power. These are already a major subtext in the
Alito nomination. With conservatives in control of the
executive and legislative branches of the national government,
moderates and liberals are naturally concerned about that
control being further consolidated in the Supreme Court. But
since the appointment of a conservative is a given, it becomes
all the more crucial to know as much as can be known about
Alito's record and philosophy on separation-of-power issues.
All senators should be concerned about Alito's apparent
fondness for presidential power, as displayed in his 1989
comments attacking the independent counsel statute as an
infringement on executive prerogative. Given the supreme
importance of the Senate to the West, our senators should be
particularly vigilant about any judicial weakening of
congressional power.
And this brings us to the all-important question of a
potential filibuster. Every senator, of course, has to make
his or her own determination about a filibuster, if that
becomes a live possibility in this proceeding. For Western
senators, there is an additional consideration.
Our region's (or any other region's) potential power in the
Senate depends fundamentally on the age-old way in which
Senate rules have protected the prerogatives of a minority of
senators to shape the body's deliberations. Any change in
Senate rules that weakens those prerogatives will in the long
run weaken the West. The "Gang of 14" agreement to preserve
the filibuster rules intact - provided that the filibuster is
not used capriciously - deserves strong Western support, and
Sens. John McCain of Arizona and Ken Salazar of Colorado
deserve our regional gratitude for their role in shaping that
agreement.
Now, if the possibility of a filibuster arises in the Alito
nomination, Western senators should weigh that possibility
against the long-term best interests of the Senate and the
West. Merely having those considerations on the table, along
with other legitimate regional concerns about the nominee's
judicial philosophy, would provide a refreshing balance to a
confirmation process that might otherwise be colored by the
worst kind of single-issue politics.
A version of this column appeared on Headwaters News, an
online news service of the Center for the Rocky Mountain West.
Daniel Kemmis is a senior fellow with the Center for the
Rocky Mountain West, Missoula, Mont. | 
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