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  • Tuesday, January 10, 2006


    Alito: Empty Platitudes Served Up Fresh

    After the first day of hearings on the confirmation of Judge Alito, here is what we learned about his judicial philosophy:

    A judge's only obligation "is to the rule of law. And what that means is that in
    every single case, the judge has to do what the law requires."
    Alito's statement is devoid of any substantive content. The reason a case is before the U.S. Supreme Court is because there is considerable and significant disagreement as to what the "rule of law" is, or what specific outcome the "rule of law" requires with regard to a particular set of facts.

    For example, a case that might come before the U.S. Supreme Court presents the following issue: "Does a municipal ordinance prohibiting picketing on the public sidewalks in a residential neighborhood violate the First Amendment to the U.S. Constitution, which says Congress shall make no law abridging the freedom of speech?" There was a split in the circuits: some said yes, some said no. In 1988, by a 6-3 vote, the Supreme Court said yes. This is the nature of the constitutional cases the Supreme Court typically decides. The Supreme Court does not and should not usually bother with cases that have easy answers. If there was an easy answer to the question, there would not have been so much disagreement about it.

    According to Alito, a judge's only obligation is to the "rule of law" and "the judge has to do what the law requires." How does such guidance assist a judge in determining whether the residential picketing ordinance violates the First Amendment? Alito's guidance is miserably superficial, and probably on purpose.

    No doubt some Supreme Court nominees and the Presidents who nominate them wish the Senators would keep their inquiries at the same level of inane generality. Of course, generally speaking, the Senators who favor the nominee will do so, and it is unlikely that doing so will trouble them in the least.

    But every judge has a judicial philisophy (or in some instances just a really bad temperament) whether he or she knows it or admits it to others. Judicial philosophies are constant themes or basic analytical propositions about the law and justice that provide a common thread in a judge's decisions viewed in the aggregate.

    Here are a few examples: some judges, and I am not referring only to Supreme Court Justices, when you look at the decisions they have made in the course of their careers, have exhibited some of the following constant themes: (1) "to hell with consumers and their petulant whiny complaints about getting personally or economically injured by large corporations;" or (2) "I believe God has a plan for my life, and I am so wonderful, and I feel it is my obligation to impose my moral opinions, beliefs, and values on everyone else, because I know better how every single person on this planet should live and what they should think, and, after all, America was founded by Christians was it not?;" or (3) "hmmmmm, this case is really boring....when are these damn lawyers gonna shut up so I can go play golf with Mayor McCheese?"

    Fortunately or unfortunately, depending on how much you actually care about knowing a Supreme Court nominee's judicial philosophy before you give him or her a lifetime appointment and free health insurance, some of those pesky Senators will be a bit nosy about Alito's judicial philosophy.

    And anyone who takes up the mind-numbing task of watching or reading the transcript of the confirmation hearings will be witness to Alito putting on a brilliant forensic display of the art and skill of circumlocution, dodging questions, uttering copious amounts of words, sentences, and paragraphs that mean absolutely nothing, and expecting people to accept he does not really believe the things he said he believed in when he was a lawyer in the Reagan adminstration because he only said them when he was a lawyer and, after all, everyone knows lawyers say anything they think they have to say in order to win any particular advantage, whether they actually personally believe it or not, and besides that was a long time ago and he doesn't think the same way anymore, but he is sorry he can't tell you what he really thinks now because he doesn't want any potential litigants to be concerned he may have decided their case before he hears the facts.

    The Senate Confirmation hearings are just political theater. They only serve the purpose of finding out the nominee's acumen for being obsequious to the Senators who support his nomination, and playing "hide the ball" from Senators who want to learn about anything meaningful about the nominee's judicial philosophy. This is the true test of a Supreme Court nominee. If he or she cannot handle this ritual with the necessary aplomb and intellectual alacrity, then he or she is not qualified to serve on the nation's highest court.

    Alito did just fine.

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