Chalk this one up as better late than never:

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”

“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”

. . . Senators were too quick to accept the nominees’ word that they would respect legal precedents, and “too easily impressed with the charm of Roberts and the erudition of Alito,” Schumer said. “There is no doubt that we were hoodwinked,” said Schumer, who sits on the Senate Judiciary Committee and heads the Democratic Senatorial Campaign Committee.

Yes, Senator. You were. More.

It has long been my view that the Senate should ask specific questions of the views of SCOTUS nominees. They should be able to ask "do you believe Roe v. Wade should be overturned?" If the nominee chooses not to answer a question like that, then Senators should vote no on that nominee, or table the nomination until he/she does answer the questions. It seems Senator Specter is moving towards that view:

Sen. Arlen Specter (R-Pa.) plans to review the Senate testimony of U.S. Supreme Court Chief Justice John Roberts and Justice Samuel A. Alito to determine if their reversal of several long-standing opinions conflicts with promises they made to senators to win confirmation. Specter, who championed their confirmation, said Tuesday he will personally re-examine the testimony to see if their actions in court match what they told the Senate. "There are things he has said, and I want to see how well he has complied with it," Specter said, singling out Roberts. . . . Specter, the ranking Republican on the Judiciary Committee, who served as chairman during the hearings, said he wants to examine whether Roberts and Alito have "lived up" to their assurances that they would respect legal precedents.

Obviously Roberts created a false impression. But the Senate Judiciary Committee allowed that impression because they allowed the White House to stonewall its document requests and for Roberts to avoid answering specific questions. A lesson is learned? Doubtful but good to see the question asked. More.

Edward Lazarus is incredibly smart. His incisive writing in analyzing the law and the politics of the Supreme Court is both accessible and enlightening. But like too many other academic Broders, he is too detached to truly express, in my opinion, the seriousness of the current state of our political legal battles. In today's WaPo, he provides yet another example of that detachment:

[T]he court of Chief Justice John G. Roberts Jr. announced itself as even more conservative than William H. Rehnquist's court, which, from 1986 to 2005, undercut many of the progressive initiatives from Earl Warren's era. The Roberts court also showed little regard for the court's own precedents, overruling or eviscerating a slew of past decisions that did not conform to conservative principles.

This is a jarring, and accurate, paragraph. It should send chills down Lazarus' spine. If it does, it is not reflected in Lazarus' column:

E.J. Dionne, in a "closing the barn door after the horse has gotten out" column, argues that the Senate should:

Just say no. The Senate's Democratic majority -- joined by all Republicans who purport to be moderate -- must tell President Bush that this will be their answer to any controversial nominee to the Supreme Court or the appellate courts. The Senate should refuse even to hold hearings on Bush's next Supreme Court choice, should a vacancy occur, unless the president reaches agreement with the Senate majority on a mutually acceptable list of nominees.

With all due respect to Dionne, that is a fine sentiment and I agree with it, but it does not undo the damage done. When "idiot liberals" like me were urging filibusters of Roberts, and especially, Sam Alito (who unlike Roberts, was not a stealth candidate, anyone who wanted to could see what he would do), we were told to be "realistic" and that Democrats needed to "keep their powder dry." Indeed, the entire fight over the "nuclear option" was made a bad joke by the capitulation of Senate Democrats on Alito.

In a another 5-4 decision (Justice Kennedy did not join the plurality opinion, only the judgment, more on that later), the new Roberts Supreme Court, throwing away claims of judicial minimalism and any claims to respect for federalism, today ruled unlawful two VOLUNTARY school integration plans. Justice Stevens, in dissent, wrote:

While I join JUSTICE BREYER.s eloquent and unanswerable dissent in its entirety, it is appropriate to add these words. There is a cruel irony in THE CHIEF JUSTICE.s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.. Ante, at 40. This sentence reminds me of Anatole France's observation: [T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread. THE CHIEF JUSTICE fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.2 In this and other ways, THE CHIEF JUSTICE rewrites the history of one of this Court's most important decisions. Compare ante, at 39 (history will be heard.), with Brewer v. Quarterman, 550 U. S. ___,___ (2007) (slip op., at 11) (ROBERTS, C. J., dissenting) (It is a familiar adage that history is written by the victors.)

People For the American Way reminds us what not stopping the confirmation of Samuel Alito to the Court has done so far:

Understanding the Alito Effect PFAW Experts Ready to Discuss the Supreme Court’s Dangerous Lurch to the Far Right

Since George W. Bush’s two nominees to the Supreme Court have taken their places on the bench, the Court has veered sharply to the right, with a series of crucial cases being decided by identical 5-4 majorities. These cases reveal a troubling future for Americans’ rights and liberties. For example, just this term:

· In Carhart v. Gonzales, the Court upheld a federal law banning an abortion procedure without any exception to protect a woman’s health,

· In Ledbetter v. Goodyear Tire and Rubber Co., the Court severely limited the ability of victims of pay discrimination under Title VII to obtain compensation for the discrimination, ruling that employers couldn’t be held accountable for discrimination that occurred outside the 180-day charging period.

· In Bowles v. Russell the Court held that a person who trusted and relied on an order from a federal district court judge giving him 17 days to file a legal appeal was nonetheless prohibited from appealing because the judge had given him the wrong deadline -- overturning prior rulings under which it could have allowed the person to appeal because of the "unique circumstances" of the case.

· In Hein v. Freedom from Religion Foundation, the Court held that taxpayers cannot bring a lawsuit challenging Executive Branch spending as an unconstitutional promotion of religion when the expenditures have been made out of general appropriations to the Executive Branch.

And consider what further damage is to come.

Linda Greenhouse asks what became of the "respect for precedent" that both Chief Justice Roberts and Justice Alito paid homage to during their confirmation hearings.

Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose “unique circumstances” prevented them from meeting court filing deadlines was now “illegitimate”? It was the second time the Roberts court had overturned a precedent, and the first in a decision with a divided vote. ...

Sometimes the court overrules cases without actually saying so. Some argue that this is what happened in April, when a 5-to-4 majority upheld the federal Partial-Birth Abortion Ban Act without making much effort to reconcile that ruling with a decision in 2000 that found a nearly identical Nebraska law unconstitutional.

All judges respect the precedents they like. Many judges are cautious about overruling precedents that have been widely accepted and implemented by lower courts. But precedents that a judge finds suspect, that aren't consistent with a shared (if not widespread) judicial philosophy to which the judge adheres, enjoy less respect, confirmation hearing promises notwithstanding.

What does this portend? Greenhouse takes a guess ...

Jeffrey Toobin, writing in the New Yorker, explains why 2008 will determine not just our President and congressional officials, but the future of the Supreme Court for the next several decades.

He examines the rulings in the first full term in which Justices Alito and Roberts participated. He notes that the conservative controversial opinions were decided by votes of 5 to 4. And that Justice Stevens is 87 years old and Ruth Gader Ginsberg is 74. But Alito and Roberts are only in their 50's.

Since Souter and Kennedy, all appointed Justices -- Thomas, Ginsburg, Breyer, Roberts, and Alito —- have fulfilled the agenda of the Presidents who appointed them. No surprises.

I agree with Toobin who concludes his excellent article with:

At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly.

In James v. US, a case interpreting the Armed Career Criminal Act (I confess I had no idea this law existed before today), Justice Scalia and Alito disagreed. Justice Alito, writing for the Court, opined that "attempted burglary," as defined by Florida law, is a "violent offense" under the ACCA, relevant to the sentencing of James. Three prior "violent offenses" convictions, as defined by the ACCA, mandated a 15 year sentence.

In dissent, Justice Scalia objected to Alito's opinion, arguing that Alito gave no guidance to lower courts for determining what "residual offenses" would fall under the ACCA's "violent offenses" provision, labeling Alito's approach "entirely ad hoc."

Of special interest in today's SCOTUS decision upholding a late term abortion ban is that the mantra "leave abortion to the States" has been utterly abandoned by the Republican Party and anti-choice forces. This is a federal ban. This line from Justice Thomas' concurrence is ironic:

I also note that whether the Act constitutes a legitimate exercise of the Congress' Commerce Power is not before the Court.

For those of you who might have thought the conservative Justices were conceding the point.

From Justice Ginsburg's dissent:

One wonders how long a line that saves no fetus will hold in the face of the Court's "moral concerns." . . . The Court's hostility to the right Casey and Roe secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists not by the title of their medical specialties, but by the pejorative label "abortion doctors."

These Senators voted to not filibuster the nomination of Samuel Alito to the Supreme Court:

Akaka (D-HI) Alexander (R-TN) Allard (R-CO) Allen (R-VA) Baucus (D-MT)Bennett (R-UT) Bingaman (D-NM) Bond (R-MO)Brownback (R-KS) Bunning (R-KY) Burns (R-MT) Burr (R-NC) Byrd (D-WV) Cantwell (D-WA) Carper (D-DE) Chafee (R-RI) Chambliss (R-GA) Coburn (R-OK) Cochran (R-MS) Coleman (R-MN)Collins (R-ME) Conrad (D-ND) Cornyn (R-TX)Craig (R-ID) Crapo (R-ID) DeMint (R-SC) DeWine (R-OH) Dole (R-NC) Domenici (R-NM) Dorgan (D-ND) Enzi (R-WY) Frist (R-TN) Graham (R-SC)Grassley (R-IA) Gregg (R-NH) Hatch (R-UT)Hutchison (R-TX) Inhofe (R-OK) Inouye (D-HI) Isakson (R-GA) Johnson (D-SD) Kohl (D-WI) Kyl (R-AZ) Landrieu (D-LA) Lieberman (D-CT) Lincoln (D-AR) Lott (R-MS) Lugar (R-IN) Martinez (R-FL) McCain (R-AZ) McConnell (R-KY) Murkowski (R-AK) Nelson (D-FL) Nelson (D-NE)Pryor (D-AR) Roberts (R-KS) Rockefeller (D-WV) Salazar (D-CO) Santorum (R-PA)Sessions (R-AL) Shelby (R-AL) Smith (R-OR) Snowe (R-ME) Specter (R-PA) Stevens (R-AK) Sununu (R-NH) Talent (R-MO) Thomas (R-WY) Thune (R-SD) Vitter (R-LA) Voinovich (R-OH) Warner (R-VA)