Monday, January 09, 2006

Judging Alito. It's All About Philosophy.

Today begins senate hearings on Samuel Alito’s nomination to the Supreme Court.

So, let's cut to it. Should he be confirmed? I may lose my blogging license for this, but I don’t have an opinion yet. What I’ve read is mainly spin and I don’t expect a lot more illumination during the hearings. Democrats will try to break Alito with questions designed to make him look like a woman-hating, liberty-stealing racist while Republicans will praise his honesty and cooperation even as the cloud of obfuscation still hangs in the air.

Here’s what I want: a long and robust debate about judicial philosophy. I mean, the man is clearly qualified--he's brilliant of mind and bursting with experience. As Harriet Miers proved, unqualified candidates don’t even make it to hearings. So it’s not about Alito’s qualifications, is it? It’s about what kind of judge he will be and whether or not that’s the kind of judge we want.

But what should go into that decision?

A lot of people have claimed that since Alito is replacing the moderate Sandra Day O’Connor he should be moderate himself. Hogwash. Supreme Court seats aren’t reserved for particular ideologies anymore than they are reserved for specific genders, races or religions. The "moderate seat" idea needs to be left out of the debate.

A lot of people are also focusing on how he may rule on specific cases--abortion being the most important to both sides. This too should be left out of the equation. Why? Because it’s foolish to judge a man on one vote that he may or may not cast. Besides, what if Alito turns out to be a staunch opponent of abortion but also turns out to be a great defender of minorities, immigrants, homosexuals and other traditionally liberal causes? Would a liberal trade abortion for gay marriage? Would a conservative do the opposite?

No, I think the proper way to question this and every nominee is by delving deep into their judicial philosophy. What methods does he use to arrive at his decisions? What role should the original intent of an Article or Amendment play in decision making? What role should precedent play and when is it acceptable to overturn precedent?

Lawyers and judges and law students and laymen have these legal debates all the time. I’d love to hear Senators talk more about it too. A judicial philosophy is not a game. A good judge never decides how he or she wants to rule and then twists the reasoning to get there. A good judge follows patterns of consistent logic and philosophy.

Will Alito rule consistently, based on rigorous intellectual discipline or will he twist logic to fit desired outcomes? In my mind, that’s the real question. And that’s how I would decide if he should be confirmed.

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