Alito On The Record

I've been very busy lately, which explains the dearth of my posts. But I've also been reserving judgment on Alito. I respect the fact that he's a very accomplished lawyer and judge, and I'm certainly willing to give judicial nominees the benefit of the doubt when it comes to political views. I say this not because I am silly enough to think that Bush picks judges only on the basis of "qualifications" or "credentials", as his the President's sometime-supporters often claim. It would be silly to believe this claim.

In fact, whether a judicial nominee is "qualified" as that term has come to be used by rightwingers strikes me as the barest of necessary conditions for SCOTUS confirmation (or, for that matter, confirmation to any other position on the federal bench, with trial judges being the least worrisome level, since their decisions rarely become de facto precedents). Republicans have pushed the debate in the direction of technocratic qualification -- whether a nominee appears to have broad knowledge of precedents and major ideas in con law -- for the obvious reason that they have been nominating and confirming no shortage of results-oriented conservative activists over the last couple decades.

Whatever the record of Democratic administrations (or, more pertinently, the relatively small number of results-oriented liberal nominees), the fact is that the GOP and its more committed extremist factions did not push Bush to dump Harriet Miers primarily because of her dubious technocratic qualifications (George Will's fetishism of "excellence" notwithstanding). Rather, they were clearly nervous about her commitment to the culture-war-cum-neo-federalist judicial crusade that the right and has foisted on the country with W's loving assistance.

The fact is that the Constitution instills the Senate with the power to withhold consent to SCOTUS nominees. Quite obviously, then, the confirmation process has a political role. Senators have the right to decide whether they approve of the direction in which a nominee will push the Court -- their role is not just to look over the nominee's CV, ask a few perfunctory questions about statutory construction and then place the nominee on the Metro with directions to exit at Judiciary Square. Senators of both parties have exercised their confirmation powers aggressively, and there is nothing per se wrong with that (though the sort of secret, single-Senator holds that were popular under Orrin Hatch's JC chairmanship in the mid-1990s were a stain on the process).

Which brings me to Alito.

If he's a precedent-respecting, methodological, restraintist conservative -- one who sees courts' role as generally limited, regardless of his own policy views on an issue -- then I think the Democrats and moderate Republicans (what few of them exist) should be willing to confirm him.

On the other hand, if he's a fundamentalist originalist (to use Cass Sunnstein's terms from his recent book Radicals in Robes), then they ought to fight him tooth and nail.

So far I've had a hard time telling where Alito fits on the methodological-fundamentalist conservative spectrum. Some of his more high-profile righty-pleasing opinions seem to me consistent with any point on the spectrum. An obvious example is his dissent in Casey, in which he argues that the spousal-notification provision of Pennsylvania's abortion-restricting law did not constitute an "undue burden". While the SCOTUS later upheld the majority's view that this provision did in fact constitute such a burden, the undue burden standard was relatively new at the time, and I don't think that this example should necessarily be regarded as evidence of rightwing activism (in fact, Alito has followed precedents that protect abortion rights in other cases).

However, it goes without saying that the Supreme Court is different: different because a Justice's commitment to respect precedent is entirely voluntarily, since he can always decide that a precedent is so wrong that whatever the value of stare decisis, it's more important to "get the law right" (see "Thomas, Clarence" for a case-study of such an attitude at work on the Court). By contrast, lower-ranking federal judges are bound to respect precedents no matter how fervently they disagree with them.

So it comes as potentially cold comfort to hear that Alito has followed precedent in those cases where its results are clear.

The release yesterday of his letter (see page 15 of this document) requesting a political appointment in President Reagan's DOJ does shed some light. As has been reported widely, Alito declares his devotion to various elements of the conservative cause. Unlike Clarence Thomas, then, he's on record. Unlike John Roberts, then, he's on record explicitly describing his own views. Fine. Senators should question him as to the meaning of statements like "I believe very strongly in ... the legitimacy of a government role in protecting traditional values".

Senators should also ask him whether, when he says he "believe[s] very strongly in ... the supremacy of the elected branches of government", that means he would reject the radical attack by the Court's right on Congress's power to enact statutes on the basis of its own -- rather than the Court's -- standards of "congruence and proporitionality". I'd bet that you can learn a lot about whether Alito's conservatism is methodological or results-oriented by simply asking him if he thinks the word "another" in the 11th Amendment should instead to be read as the word "any". I'd also bet that Senator Specter will grill him on this issue.

I'd also like to hear him reconcile his particular pride in opposing "quotas" with the fact that the same Congress that passed the 14th Amendment also seems to have found affirmative action just fine in at least some cases (see Radicals in Robes for a discussion of this issue). Perhaps he doesn't believe that "original meaning" has a priviliged jurisprudential status. If so, let him say so.

Based on Senator Dianne Feinstein's characterization of her discussion with Alito today, I can't say I am encouraged. Recognizing the fact that this is Feinstein's characterization rather than Alito's directly quoted words, let me quote an article at cnn.com:

"What [Alito] said was, 'It was different then. I was an advocate seeking a job. It was a political job,'" the California Democrat said.

She said Alito said 1985 was a "very different" time, when he was an advocate for the Reagan administration. As a judge for 15 years, he looks at legal matters differently.

"I don't give heed to my personal views. What I do is I interpret the law,'" she said, quoting the 55-year-old judge from New Jersey.

First of all, I would think that being "an advocate seeking a job" -- however political the job -- would not entitle Alito to state views other than his own. Either those were his views or they weren't. He should say which it is.

Secondly, his letter quite clearly characterizes his legal views, not just his personal ones. So not giving heed to his personal views is very much beside the point.

Thirdly, saying that he now jsut "interpret[s] the law" is entirely uninformative. The question is how, and why, he interprets the law the way he does. Does he make choices simply in order to get to policy outcomes he prefers? Probably not. Does he make choices based on a consistent judicial philosophy? Maybe -- but then he should say (i) what that philosophy is, (ii) whether and how his expressed legal views of 20 years were contrary to that philosophy, (iii) if they were contrary to that philosophy, why he expressed them, and (iv) if they were not, why he doesn't just say so.

The one thing that I think would be truly unacceptable would be to let Alito skate through his hearings without going on record on lots of the hot-button things .... on which he is already on record.