Monday, January 16, 2006

The Confirmation Process Confirms the Worst

I have paid some attention to the Alito hearings out of professional interest, and this weekend I tried to take a step back and think about what value the hearings have, if any, for the "weakest branch" and for our political system in general. I think the process does have value, but it is not for the reasons that many people might think at first.

First, it is hard to ignore the observation of Senator Arlen Specter that a nominee will answer only as many questions as he or she thinks is necessary to get confirmed. But is that bad? It should not be surprising to anyone that, when the same party controls the Presidency and the Congress, a nominee will be given more latitude and it is really his or her nomination to lose, rather than a burden to prove that the person reaches toward the mainstream. Even where the confirmation process is friendly, it still provides an opportunity to weed out nominees that have bad temperment or really bad judgment, and I think that is the best we can hope for. Judge Alito has good judgment and good temperment, therefore he will be confirmed.

But, some may say, he is really conservative and is bound to overturn important Supreme Court precedent that protects the fundamental rights of citizens. Well, if that were an important value to most people, and if it is true that Judge Alito would in fact work against these things, then he should never have gotten nominated in the first place. The failure, then, is not the confirmation process but the political process that allowed President Bush to appoint him.

Second, no one should accept for a minute that politics does not matter when it comes to judicial decisionmaking. That is to say, the Constitution was not written in such a way that allows individuals to determine the right answer every time, entirely divorced from value. What does "cruel and unusual" mean in an objective sense? "Unreasonable" searches and seizures? Who gets to decide whether the President is "faithfully" executing the laws, and what standard do you apply to decide that? Political leanings, upbringing, morays--these things will always come into play in deciding legal questions. Judges are humans, and the law (in the sense that we talk of it being decided in courtrooms, anyway) is a human creation.

I guess my overarching point is that liberal democrats should assume the worst as far as Judge Alito's conservative views, but it is a little too late to be worrying about that. The best we can hope for is a judge that is humble and willing to recognize that the law is not black and white, and is willing to take other people's views into account. And nothing I saw in the confirmation process gave me too much cause for concern on that score.

Will Judge Alito vote to overturn, or severely cutback on, Roe? Probably. Will he often find himself in agreement with Scalia and Thomas? Probably. But those things would not make him a bad judge, in my view. What matters most to me is that he does not believe the black robe gives him special access to the truth.


Ryan said...

Great post. There are clearly limitations and flaws in the appointment process, and it certainly is a political appointment, like it or not. I can't help but come back to a point I made in an earlier post. Does it not seem strange that the legislative and executive branches "elect" the judicial branch? I really do think we would benefit from national elections of justices, which would more likely result in a justice whose values are in accord with most of society. This would be no more political than the process already is. Rather, it would entail a greater responsibility for the American people (for better or worse) to elect an intelligent, humble, and sagacious justice. Such a process might also sway the population to learn more about the laws that affect them. Certainly, "ratings" from the ABA and other organizations could be taken into account to help in the voting process.

Joe said...

I'm divided on this topic. The confirmation hearing such as it is (particularly, as V pointed out, when a single party controls both political branches) is a sham. I tried to watch some of both the Alito and Roberts hearings, and really could hardly stomach it. Senators grandstand and nominees evade. Hour after hour. I doubt that this provides any real service to the nation.

The Senate has the power to set the standards of conduct for judicial nominees through their votes to confirm or reject. The sort of performances we get now (skillful evasion of any topic that might be interesting) appear to be what they reward. I'd like to see greater penalties for evasion and less for having a political opinion (within bounds). Then these things might actually tell us something.

Part of the reason I think that Senators play this the way they do is the intense politicization of the process, which brings me to Ryan's point. I don't necessarily think that politics is a great mix with the judicial branch. There are a lot of separation of powers concerns that come into play in how the Supreme Court (and any other court) operates. The constitution limits the Court to dealing with cases and controversies, not allowing them to address policy matters directly. The Court has refused requests to provide advisory opinions on legal matters to the other branches. It rejects cases where the parties do not have a real stake in the issues. Statements in their decisions that are extraneous to determination of the case are considered dicta and not legally binding. This is all largely a matter of self-discipline on the part of the Court, intended to constrain the power of the Court within the bounds set out by the constitution. Sometimes that discipline breaks down and they do something stupid or overreach. It's not a perfect system. But how much less perfect will it be when the justices are elected on a political platform (I will end legal abortion, I will put the 10 Commandments in schools, etc.). I don't know that the Court's self-discipline would endure in a more political setting. Maybe state supreme courts, some (most?) of which are elected, could prove me wrong on this...

Additionally, judges, in theory should not issue decisions based on their politics. As V notes, many of these cases require value judgments and it is impossible to insulate the decisions from the justices' political opinions entirely, but they should (and generally do) try to enforce some legal discipline on their evaluations. Sometimes the better legal argument does not align with a judge's personal values. I think we all generally prefer judges who, in that situation, favor the law over their own opinion. Increased politicization may put this at risk as well.

Finally, for all its flaws, the one thing our current system does seem to select for is legal competence. Roberts and Alito are both very smart guys with strong track-records. I'm not sure you'd see same thing coming out of elections. Smart doesn't appear to sell well in national elections...