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Deja Vu at the Judiciary Committee

January 11, 2006
By Chris Edelson

After 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.

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