15 January 2006

Cracking The Alito Codebook

Cracking The Alito Codebook
Ralph G. Neas
January 10, 2006
Ralph G. Neas is president of People For the American Way .

Commentators all along the political spectrum have decried the “Kabuki” theater quality of Supreme Court nomination hearings, where nominees are coached in the expected rituals and non-answers and the media rate the performance for the nominees’ appearance, demeanor, sense of humor and the “cuteness” of family members. Yet consideration of a Supreme Court nomination is one of the most important and far-reaching duties of the Senate. The focus must be not on spin generated by Alito’s right-wing supporters, but on the substance of the nominee’s views and credibility, especially in filling the vacancy created by the resignation of mainstream conservative Justice Sandra Day O’Connor.

I would like to point out a few of the most obvious and frequently occurring forms of nominee “spinning” that senators, media and the public should expect to hear this week during the confirmation hearings of Supreme Court nominee Samuel Alito. It is crucial to get past the spin so that senators and the public can make an informed decision about this lifetime appointment to our highest court.

In this era of televised confirmation hearings, it is hardly a surprise that nominees are coached in extensive preparation sessions to present themselves with a pleasant and judicious demeanor, to tell funny stories, to refer warmly to their kids, their parents and favorite teachers, and to have at the ready examples of popular books and movies that they enjoy and of good deeds that they have done. Similarly, an army of surrogates is assembled to attest to the nominee’s friendliness, decency and kindness to others. But a Supreme Court nomination is not a high-school popularity contest, and the justices’ real impact on people comes through their opinions—from how they construe our Constitution and laws. That should be the real focus of the hearings.

The canard most frequently used by Supreme Court nominees before the Senate is that, in construing the Constitution in tough cases, justices function essentially like machines: Just insert the applicable constitutional language, context, history, precedents and facts, and justices mechanically determine what the law is, without exercising judgment or discretion or drawing upon their personal experience or values. Make no mistake about it: That view of the role of a justice is a myth.

As Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit, a Reagan appointee and one of the most prolific and frequently cited legal scholars, wrote in the November 2005 issue of the Harvard Law Review , construing the Constitution in the tough cases that come before the Supreme Court requires the exercise of a “political” judgment.

When a nominee says “I will interpret the law and not make it,” or “call them as I see them and act like an umpire,” that tells you nothing about how the nominee will decide tough constitutional cases. Deciding those cases requires, as Judge Posner acknowledged, the exercise of a “political judgment,” in other words the application of a judicial philosophy about the meaning of the Constitution and the role of the Supreme Court. Alito’s judicial philosophy must be the principal focus of the confirmation hearings.

Perhaps the second most common canard offered by Supreme Court nominees is the one that suggests that if the nominee has expressed an opinion about a particular legal issue that may come before the Supreme Court, the nominee is ethically compromised, and may not sit on the case. Nominees have been coached to avoid answering such questions, to assert what could be called the Nominee’s Fifth Amendment: “Senator, I’m sorry but I must respectfully refuse to answer that question on the ground that the issue may someday be before the court to which I’m nominated.”

But as New York University Law School Professor Stephen Gillers concluded in a letter released by Sen. Charles Schumer, the canons of judicial ethics do not forbid nominees to answer senators’ questions about issues that may come before the court so long as (1) they don’t comment on specific pending or soon-to-be-filed cases, and (2) they refrain from making promises, pledges or commitments about how they will rule on particular issues.

So with those exceptions, there’s nothing wrong with a nominee expressing an opinion, before the Judiciary Committee or elsewhere, about a legal issue that may come before the Supreme Court. There better not be, because members of the Supreme Court have done so—both before and after they’ve joined the court—for a long, long time.

In Laird v. Tatum , then-Justice Rehnquist declined a request that he recuse himself from the case on the ground that while serving as assistant attorney general, he had referred to the case in congressional testimony and discussed the legal issue involved in speeches. In his memorandum opinion explaining his decision, Justice Rehnquist listed a Who’s Who of Supreme Court justices (Hughes, Black, Frankfurter and Jackson) who sat on cases in the court despite having expressed strong opinions on the issues involved prior to their confirmation.

Indeed, the fact that Justice Ruth Ginsburg, whose testimony at her confirmation hearing is frequently mischaracterized by the right wing, testified extensively before the committee about her views that the Constitution protects women’s right to choose to have an abortion, has not prevented her from participating in abortion cases. The so-called “Ginsburg precedent” thus supports the right of the Senate to insist that nominees disclose their views on legal issues that may come before the court, especially where, as in the cases of Ginsburg and Alito, their prior writings extensively address such issues.

More importantly, the justices themselves express opinions about legal issues that may come before them all the time. We know where each of the justices stood on Roe v. Wade when Casey was decided—they told us in the opinions they wrote and joined. No one would suggest that they must recuse themselves the next time a case based on Roe is argued.

Indeed, the fact that we have a very good idea where most of the justices stand on key constitutional issues most of the time is what makes the vacancy created by Justice O’Connor’s resignation so important. The fact that we talk about “swing” justices underscores that there are other justices whose votes are taken by granted by lawyers, because their prior opinions indicate where they’re likely to stand.

Alito’s right-wing allies will employ the tactics I have described, and others, in an effort to prevent senators from probing deeply into the nominee’s judicial philosophy as it relates to specific and crucial legal issues. But with the stakes so high in filling Justice O’Connor’s seat, senators must vigorously resist such tactics and fulfill their critical duty.

As Senate Judiciary Committee Chairman Arlen Specter wrote in his 2000 book, Passion for Truth : “[T]he Senate should resist, if not refuse, to confirm Supreme Court nominees who refuse to answer questions on fundamental issues. In voting on whether or not to confirm a nominee, senators should not have to gamble or guess about a candidate’s philosophy, but should be able to judge on the basis of the candidate’s expressed views."

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