Deja Vu at the Judiciary Committee
January 11, 2006
By Chris Edelson
the first day of the Alito hearing, headlines proclaimed that Judge
Alito "pledges to do what the law requires."
Huh? Is this supposed to contrast with those judges who swear
to do the opposite of what the law requires? Seems like an extremely
bland platitude, meaning absolutely nothing.
In fact, this is a carefully chosen political statement, a piece
of rhetoric torn from the Republican playbook. Alito's statement
is indeed meant to suggest that there are judges who do not follow
the law. In the Bizarro world that is Republican dogma, such judges
are known as "liberal activists."
Who are these devil may care, black robed commies? The rhetoric
does not get into specifics. For years, the vague spectre of the
liberal activist judge is invoked whenever Republicans talk about
the courts, and especially when a nomination is pending.
The "logic" works as follows. "Conservative" judges follow the
law precisely as as it is written. They do nothing more than apply
clear legal principles to the cases that come before them. Those
wacky liberals make it up as they go along, infusing their decisions
with a dash of social engineering, a smidgen of political correctness
and a dollop of paternalistic activism.
The script works great. Everyone knows it by heart. It is so much
a part of Americans politics that Americans know exactly what Alito
means when he promises to "do what the law requires."
The reality is that Alito's pledge is based on a false dichotomy.
Who are these liberal pinko judges out to wreck America? We never
hear them mentioned by name. We almost never hear specific decisions
mentioned as examples of activist judging.
Real judging and real law are not as simple as the Republicans
would have us believe. If their premise were correct and judging
was simply a matter of applying clear, objective principles, then
there would be no need for human Supreme Court justices. Cases could
be decided by computers.
In fact, the law does not work that way. Different judges reach
different decisions, not because one side is following the law while
the other is legislating from the bench, but because many legal
questions - especially the hard cases that reach the Supreme Court
- do not lend themselves to clear, unassailable conclusions. Real
law and real judging depend on deciding the meaning of ambiguous
statutory terms and opaque constitutional phrasing.
There may not be one objective result when a case comes before
the Supreme Court involving, say, gender discrimination by the government.
Analyzing such a case depends on poring over past decisions and
applying tricky judge-made principles that are used to apply the
lofty promise of "equal protection" under the 14th Amendment to
real world problems never dreamed of by the framers.
Members of the judiciary committee should pull open the curtain
that cloaks the judicial process in mystery. They can do this by
asking Judge Alito simple questions. Are you a strict constructionist?
How does a strict constructionist differ from an activist - and
be specific? Can you give us examples of activist decisions? Can
you tell us how a strict constructionist would interpret ambiguous
constitutional language such as is found, for example, in the Fourth,
Fifth, and Eighth amendments?
The reality behind the rhetoric is that the law is not a simple
matter of applying clear principles to cases. Legal answers, especially
to questions before the Supreme Court, are often complicated and
ambiguous. The fact that different judges decide hard cases differently
does not mean one side has a lock on absolute truth while the other
is making things up as it goes along.
All nominees who appear before the Judiciary Committee can promise
to follow the law; there is nothing unique in Judge Alito's statement.
The real question is how they will decide hard cases. Let's dump
the rhetoric, look at Judge Alito's past decisions, and ask him
to explain his decisionmaking process in those past decisions. If
he is outside the mainstream, he should be rejected, whether he
solemnly pledges to "do what the law requires" or not.
Visit Chris Edelson's blog, Liberally Speaking, at chrisedelson.blogspot.com.