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.