Kennedy and the Legal Class

Striking observations from Senator Kennedy:

"The Senate's constitutional role has helped keep the court in the mainstream of legal thought."

Well, maybe it is the job of the Senate to keep legal thought connected to the Constitution. Or keep the Judicial thought in the mainstream of American thought. Nothing better exemplifies the concept of hegemony than the way we make weighty moral and philosophical issues into the province of a profession that purports to be merely "interpreting" documents.

"Perhaps the biggest winner is the president himself. During Alito's hearing, I asked him about a 1985 job application in which he stated that he believed "very strongly in the supremacy of the elected branches of government." He backpedaled, claiming: "I certainly didn't mean that literally at the time, and I wouldn't say that today."

But he is willing to say it now. In the very recent case of Hamdan v. Rumsfeld , Alito signed on to a dissent by Justice Clarence Thomas that asserts a judicial "duty to accept the Executive's judgment in matters of military operations and foreign affairs" as grounds for allowing the administration to use military commissions of its own design to try detainees at Guantanamo Bay, Cuba."

Now, I cannot imagine any of the signers of the constitution arguing with the notion of the supremacy of the elected branches. And the idea that courts' judgments in military operations and foreign affairs would have been laughable. The idea that the Senate was created by the founders to protect the perogatives of the legal class would have been the object of contempt.