Confirm Alito: A Reluctant Endorsement

Alito-Samuel.jpgBy the accounts of those who know him, Judge Alito is a man of integrity.  He is a fairminded judge who approaches each case with an open mind.  He does not use his rulings as an opportunity to advance an agenda, and he understands the importance of judicial restraint.  His legal intellect is of the highest order, and his professional experience are excellent preparation for service on the Court.

Further, the treatment that Judge Alito was forced to endure from the Judiciary Committee Democrats was dispicable.  The allegations of misconduct with regard to the Vanguard case are without merit. Innuendo that suggests that Alito holds racist views is not only equally baseless, but also beneath the dignity of the United States Senate and Judge Alito himself.  Suggestions that Alito holds a bias in favor of certain types of clients were rejected by those who have worked with him and demonstrate either a fundamental lack of understanding of the appellate system by those who made such accusations, or, more likely, a deliberate attempt by President Bush’s political opponents to hijack the nomination process by manipulating statistics to mislead the American public.

In generic terms, Alito is the ideal judge.  He is brilliant, open minded, diligent, and fair.  He considers all arguments and makes every effort to do nothing more than apply the law to the facts presented to him, rendering his personal policy positions entirely irrelevant.  These qualities suggest that he would make a supurb Supreme Court Justice.

Having said this, I cannot endorse the confirmation of Judge Samuel Alito without reservation.  My concern stems from a number of Alito’s statements with regard to the judicial process.  In particular, I am troubled by Alito’s statement that judges must start with precedent when looking at a case.  In England, this would be true.  The Founding Fathers, however, departed from the English system by writing a Constitution that protected certain rights and left the ability to determine other policies to federal and state legislative bodies.  The Constitution was written to ensure that there would be an established system that governed all future government activity.

Since that time, the Supreme Court has departed significantly from the text and intent of the Constitution in favor of “progress” or the prevailing ideology of the day.  These transgressions represent a fundamental problem with our judicial system.  Judges have acted as super-legislators, amending the Constitution by judicial fiat and leaving individuals and legislatures in the impossible position of having to pass constitutional amendments to reaffirm what the Framers and previous amenders of the Constitution had in mind.  When dealing with issues in which the Supreme Court has already amended the Constitution by its own volition, Justices have the same responsibility that they have in other cases, viz. to apply the Constitution to the facts before them.  Stare decisis can be informative with regard to statutory interpretation, but Supreme Court Justices have a responsibility to look first and foremost to the Constitution in each of the cases that come before them.  It is not a little troubling that Judge Alito said during the hearings that he would start with precedent rather than the Constitution should he be confirmed.

I remain cautiously optimistic that Judge Alito will improve upon certain symptoms of the problems created by a cavalier Court that has so frequently departed from the Constitution, but I do not think that he will help to solve the core problem of the Supreme Court not considering the Constitution the foundational guide for all of its decision-making.  As Matthew J. Franck has argued at NRO, decisions firmly grounded in the Constitution do not need to rely heavily on their value as precedent.  I wish that Alito’s statements on this matter were sufficient for me to oppose his nomination.  Sadly, though, a replacement nominee would surely do no more to solve the fundamental problem and may well do less to deal with the symptoms thereof.  As such, it is with great reluctance that I now endorse the nomination of Judge Samuel Alito to replace Justice Sandra Day O’Connor on the Supreme Court.

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