January 11, 2006

Squandered Opportunity

I'm kind of sorry that I don't have the free time to listen to the Alito confirmation hearings. But I'm kind of not, too. One of the more amusing analyses I have read about the hearings is this article from Slate:

Sam Alito has chosen to simply bore his way through [his confirmation hearing], and as a consequence, two days into the hearings, the Democrats on the judiciary committee have hardly laid a glove on him. ... His way is to drill down and answer in lengthy doctrinal detail; to justify his past decisions with technical legal analysis; to expound upon three-part tests and legal factors to be balanced. He never tells you the answer to the question, but he's always expansive on how he might get there. [By doing so,] Alito has thus far generated not one flash of heat. There has been no clash, no argument, no losing of his temper. He is like a very, very smart rock. And this stoniness is slowly wearing down his opposition. ... Alito is crushing the Democrats with unrelenting tedium and a demonstrable love for material they don't really understand. ... It seems that committee Democrats are being harmed by their new emphasis on executive overreaching—it means they have lost whatever focus they once had on the issues of privacy and abortion—but they haven't got real traction on the executive-authority questions either. The public doesn't seem to care, and the senators don't fully understand the concepts—like that of the "unitary executive"—they are attempting to explore.

Constitutional law, like most of the law, can be tedioius but it can also be a great joy. In essence, it is the law that applies to the relationship between the people and their government. More so than any other branch of the law, Constitutional law is about fundamental freedoms, about what it is to be an American. At its worst, it is about transparent manipulation of cherished freedoms for the short-term advantage of the political sponsors of a group of judges. But at its best, Constitutional law is about what is inherently good and noble in America.

The Senate confirmation process, being conducted by a political branch of government and being the result of twenty years of both parties' using the judiciary as a political football, is well capable of ferreting out whether Judge Alito, if he becomes Justice Alito, will practice Constitutional law at its worst. But by trying to get a partisan judge who will vote in their favor,* the political parties (both of them) have forsaken the possibility that

Alito is doing what he should by explaining the hows and whys of his judicial decision-making process. This is the information the Senate needs to decide if Judge Alito should sit on the highest court of the land. And it is disgraceful that the Senators who are questioning him -- almost all of whom are lawyers themselves -- are unconcerned with learning how the man thinks or why he reaches the conclusions he does. They only care about whether Alito will reach the result they want. By using an outcome-determinative political lens to examine the nominee, they ignore too much and demonstrate disregard for the potential to identify a jurist who can mold the law to its rich potential. It sounds like he's really smart and understands the Constitution well. It also seems that he is capable of seeing nuances and modifying his opinions to account for them. But the Senate confirmation process is not well-suited for demonstrating that to the public. So we can only hope that Justice Alito will be able to rise above the partisan muck that he must wade through to get on the Court.

* "Vote on what?" you might ask. I refer to the perennial abortion cases, of course. All other legal or political issues pale in comparison.

No comments: