I HAD the opportunity to attend the fourth day of Senate Judiciary Committee hearings on Samuel Alito's nomination to the Supreme Court last week. In this round of questioning, only the Democrats on the Judiciary Committee had asked for more time, and as one might expect, they grilled Alito on the subjects of affirmative action, eminent domain and other areas of precedent. Time after time, Judge Alito dodged the questions by replying that he would have to be presented with the specific facts of a case in these areas to make judgments.
Critics of Alito's decry this behavior as shady and make the argument that the judicial process is never black and white, and that an element of personal philosophy always enters rulings made at such a high level in the courts. It's certainly true that the Constitution isn't always clear in many situations and that interpretation becomes unavoidable. But these people want definitive answers about how Alito and other prospective justices would rule so that Congress can vote not for a man, but for an outcome.
The Supreme Court is supposed to be a judicial body removed from the arena of politics, with its justices insulated by lifetime appointments. Making their personal philosophies the centerpiece of their confirmation processes, unfortunately, strips away that insulation, which is precisely why the best way for a justice to get confirmed has become to dodge most of the questions that the committee poses.
This politicization of the nominating process is also decidedly counterproductive, to say the least. Under questioning from every single Democrat on the committee, Alito provided no concrete answers on anything except his failure to recuse himself from a case involving Vanguard, a company he had investments in, and his membership in Concerned Alumni of Princeton, a group with some controversial views.
If anything, the senators didn't have enough time to explore these subjects fully, because of how much they used trying to get Alito to take an ideological stand. As a result, the explanations the committee got for the Vanguard affair were varied and confusing, and the issue of CAP, though an emotional one for Alito's family, wasn't totally dealt with either.
Those subjects at least had some bearing on Alito's fitness to be a justice. His ideology, which happens to be a conservative one, should not have been up for discussion -- even though nominees' individual leanings have been part of confirmation debates going back for many administrations.
Senators' failing to confirm a judge because he or she is opposed to abortion or affirmative action isn't far removed from a voter choosing one candidate over another because one has promised to lower taxes. That sort of choice is vital to representative democracy in the legislative branch, but it has no place in the judiciary. There's nothing wrong with simply knowing what a judge's philosophy is, but that's what the paper trail is for.
At the hearings, while Democrats tried to get opinions out of Alito, Republican Sens. Arlen Specter and Chuck Grassley used their time for humorous anecdotes, recalling stories during their allotted time of one of them being mistaken for the other. The reason for their lack of seriousness during such politicized parts of the hearings was apparent -- Judge Alito was thoroughly considered and interviewed by President Bush and Karl Rove! That alone would seem to preclude his being anything but conservative.
That part of the nomination process will likely never change: The president, no matter what party he or she is from, will try to nominate a candidate who shares his or her own personal views. But over time, this tactic is not likely to significantly tilt the court one way or the other. The decidedly non-conservative records of Sandra Day O'Connor and David Souter, both nominated by conservatives, are proof that such nominations aren't as strong of an influence as some would argue. And as much as I might disagree with some of Alito's conservative views, I also recognize the obligation of the Senate and the public at large to give deference to the president's choice.
Alito, obviously, needs to be confirmed. Any sort of a prolonged struggle over his nomination could have negative impacts on the Senate and the government as a whole and preclude the discussion of more pressing issues. More importantly, though, this needs to be the last time a nominee's ideology is the most important issue.
Investigate their personal histories, check their paper trails and make sure there aren't any major skeletons in the closet. But let's remember: Confirmation isn't an election, it's merely an approval.
Matt Waring's column appears Fridays in The Cavalier Daily. He can be reached at mwaring@cavalierdaily.com.
Read More
KURTZWEIL: What we lose in the name of efficiency
By Paul Kurtzweil | 14 hours agoPenicillin was discovered in a moldy petri dish — this government would have it thrown out because it was wasting space on the counter.
RASHID: U.Va. must empower faculty and students through transparency
By Muhammad Ali Rashid | YesterdayBy attempting to contain, or even eliminate uncomfortable narratives, the administration incrementally consolidates power and frays communal trust.
YOUNIS: Muslim students deserve a better Ramadan on Grounds
By Ayat Younis | YesterdayRamadan at the University should not be a time in which students must choose between academic success and religious observance.
