Thursday, January 12, 2006


Throughout his Supreme Court confirmation hearings nominee Judge Alito was asked for his opinions on matters both specific and general. His responses were often as long-winded as the questions and invariably non-substantive.

Two memes ran through the majority of Alito’s responses:
He would pay due respect to relevant Supreme Court precedence in future judgements.
He would look at only the facts of an actual case (nothing hypothetical)

In response to hypothetical cases he refused to be drawn and when asked about apparently inconsistent applications of "principle" in cases he had adjudged he protested that his judgements concerned technical legal issues in each case.

And THAT is problem with Alito; he is a pedant.

By all means the facts and individual merits of a case of ordinary law should be the primary considerations of a judge. But with regard to the constitutionality of a law, the actions taken to execute it and the arguments provided to sustain it or overturn it, surely contemporary social and societal concerns and indeed future public concerns should be included in the Supreme Court’s reckoning?

The Constitution is above all a document of principles which were and still are "activist".

Were it not for "activism" on the part the Supreme Court racial segregation (if not outright slavery) would still exist in the U.S. and everyone not native-born and non-white would still be living in a ghetto, women would have no voice and no property and so on.

I’d argue that a sense of "activism" is precisely what is required of a Supreme Court Justice because the Constitution and the Bill of Rights were themselves the codification of "activism" at the time they were written, and continue to be so today. Surely the function of the Supreme Court is not only to uphold the Constitution but to expand it appropriately in accordance the legislature, but NEVER ever reduce it.

The Democrats pointed to Alito’s judicial record of overwhelmingly siding with authority and/or the administration and tried to paint him as a right-wing Republican ideologue.
The Republicans offered instances where Alito contrarily sided with the individual, thereby refuting the Democrats broad characterization.

Taken as a whole Alito appears philosophically more Republican than Democrat, but not wholly so. If neither his judicial nor his political philosophies place him solidly in either camp, who and what is Judge Alito? Who the hell knows? During the hearings he refused to be drawn into any philosophical argument.

Given the failure of the committee to get Alito to provide any insight of his own philosophies we can only go by his record.
Most of Alito’s rulings favored business and government at the expense of "the little guy" yet a minority of his rulings favored the "little guy" over business and government. He seems to have a prejudice, yet he doesn’t always exercise that prejudice ergo he is not entirely prejudiced, as Democrats would like to believe; but by his record he isn’t entirely Republican either.
Does that make Alito an "independent"? In a way it does. But not so "independent" as to scare the Republicans, nor "independent" enough for the Democrats to accept him.

Much has been made of Alito’s grasp and retention of detail—essential skills for lawyers and judges alike—and during the hearings regarding many and varied cases he demonstrated both.
Strange then that he could not recollect the details behind his CAP membership, nor whether his ultimate recusal from a case was propitiated from a computer glitch or (as he later explained) from the laxity of procedure afforded to the litigant’s self-representation as opposed to the more stringent procedures required of professionals.
Strange also that he could not recollect precisely why he had joined CAP other than to assume the reason involved the banishment of the ROTC from the Princeton Campus when CAP’s overriding concern was that the admittance of women, racial minorities and the physically disabled was detrimental to Princeton’s ethos and reputation.
Only after repeated questioning did he admit that the mention of CAP on his resume when applying for a job in the Reagan Administration was an expedient ploy and thus nothing to do with his professed passion for the rights of the ROTC on the Princeton campus. So he lied under oath in that regard—not a good start for any judge, let alone a Supreme Court nominee.

But the fact that Alito lied under oath is remarkably not the big issue. The big issue is WHY he lied. The reason he lied is because he didn’t want to admit that he included his CAP membership in his resume NOT because it added to his technical and academic qualifications but because it provided a political and philosophical qualification that would give him an advantage in getting the job he desired.

What this relatively small lie and subsequent admission reveal, in combination with his mostly conservative pro-business but occasionally pro-individual judicial record is that Alito’s main concern is not justice, nor the maintenance of the Constitution for the public good but what he is prepared to do to serve his own needs and philosophy.

Alito is a self serving opportunist and politically more "Libertarian" than anything else. He has worked his way diligently to align himself with privilege, money and power and his Supreme Court nomination places him one step away from his personal goal—to join the "club" and be given a lifetime membership of personal status, privilege and power.

Libertarians have no political party of their own but they find common cause with the conservatives rather than liberals.
Alito’s public record demonstrates a Libertarian view- a minimalist law-and-order government presided over by an all-powerful executive that promulgates a pedantic world vies and rewards its supporters handsomely.

Alito is a pedant who uses the inherent pedantry of the legal system to further his own position in society and to satisfy his own ego. He doesn’t give a damn about philosophy, he doesn’t give a damn about political parties per se, he doesn’t gave a damn about the political, social or economic future of this country and he doesn’t give a damn about the intent or application of the Constitution that was designed to serve the public.

If he has an ideology or philosophy, it is anchored in his ego. For these reasons, Alito is unfit to serve as a Supreme Court Justice.

1 comment:

Carl said...

Excellent post, Brit.