Wednesday, January 11, 2006

All Alito All the Time: What's Really Going On?

The Washington Post today: Senators Unable to Draw Out Alito's Views on Abortion

The New York Times: Democrats Press Alito for Specifics on Abortion

Media Matters on CNN coverage

We’re now in the midst of wall-to-wall coverage of the Senate hearings on Judge Samuel A. Alito Jr., who will become the next Supreme Court justice if we don’t find a way to stop the nomination.

If Alito gets on the court, that very important body will probably swing wildly to the right. Those of us who believe in civil rights and limitations on the power of the presidency may be in BIG trouble. I am attempting not to panic here, but I am finding little in the way of hope right now in this very political process.

Nancy Jane, a friend of mine who is an attorney in Washington, D.C., very kindly provided some perspective tpday on how us non-legally-oriented peons can understand the proceedings. Many thanks Nancy Jane!

Nancy Jane wrote:

I tend to have a high opinion of judges. I think most of them are very smart people who bend over backwards to make the best rulings possible. That said, there are a few things we need to consider when looking at the selection of judges on any level, including justices of the supreme court:

1. The process of selection is political. A person does not get appointed to the federal bench without ties to one political party or the other. People who want to be judges get to know politicians who can help them get appointed.

2. Judges are lawyers, and the law as a profession is intertwined with politics. Lawyers are also bright people, as a rule, and bright people have opinions. Lawyers are also very good at finding ways to prove that their opinion is correct. Given that many supreme court decisions are made 5 to 4 (and, in fact, during the Rehnquist years, there were often a multitude of opinions on key cases, so that while one person won 5 to 4, the 5 often wrote separate opinions giving different reasons for their vote), it's obvious that justices can find solid reasons to support very different opinions.

3. There is a difference between general political affiliation and judicial philosophy. A person could well have very strong poltical views -- views that might well push for significant social change in society, for example -- and yet subscribe to a very moderate judicial philosophy. Justice Felix Frankfurter -- whose personal politics were pretty liberal -- comes to mind. Many liberals were very frustrated by his decisions.

It is Judge Alito's approach to legal issues -- which seems to be similar to Justice Scalia's -- that troubles me. At a minimum, he seems to fall among those who think an issue isn't covered by the Constitution if the founding fathers didn't think about it.

I disagree with this because I do think the Constitution is a living document and that issues that now face us are ones that were not a factor in the late 1700s. Take privacy -- in a world without electronic communications, there is no electronic surveillance.

Most nonlawyers don't know much about judicial philosophy -- actually, only legal scholars are really up on the subject -- so it's difficult to weigh. But I think it's a vital consideration for the Senate to use in this debate.

While it's hard to figure out what the average person's judicial philosophy is, I suspect that it's much more moderate than that of Judge Alito. Also, because this is a political process, I think the Senate should consider the fact that the president's intent is to create a supreme court with a very conservative judicial philosophy, even though the population is not nearly that conservative. The Senate has the power to tell the president that such a realignment of the court is not appropriate and reject Judge Alito for that reason alone.

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