Justus For All

I have heard a good portion of Alito’s testimony, and that of many of the witnesses now, and am ready to express my thoughts on him as a Supreme Court Judge.

In short, I am pretty impressed. He strikes me as a very conscientious judge. The biggest factor in reaching that decision was the testimony of his fellow judges, which was both very positive and very powerful evidence as to how he judges and what kind of judge he is, and will be on the Supreme Court.

My biggest worry was that Alito would be a strong proponent for executive power. I still think that he is generally favorable to executive power, but in a moderate, rather than a radical way. He certainly won’t be issuing any ‘blank checks’ to the executive, but he will listen carefully to their side of the case. I expect that when there is reasonable doubt as to which way a case should be decided and constitutional theory and the facts of the case could support either interpretation he will generally rule in favor of the executive, but that is a result I can probably live with. I highly doubt that any sweeping changes or surprising precedents will arise from Alito.

As to any charges that Alito is biased against women or minorities or ‘the little guy’ I find those contentions completely baseless.

On Abortion it is difficult to say for sure. I am no fan of Roe v. Wade from a legal point of view, although I have little problem with the result, so I don’t really have a huge personal issue here. I am quite sure that Alito personally opposes abortion. I don’t think that he is especially eager to overthrow Roe though, and would not vote for certiorari unless there was some strong factual reason to reopen the issue. I expect that Roe will remain the law for many years to come.

I didn’t get any strong sense from Alito on Congressional power, commerce clause issues or the takings clause. I expect he would hear those issues carefully, although I admit it not unlikely that he would rule on the ‘conservative’ side. Probably he will be quite similar to Sandra Day O’Connor in this regard.

I cannot see any reasonable grounds on which to oppose his nomination unless you think that executive power is already well beyond where it would be and any increase, however slight would be horrible or if you are so focused on abortion that any possible threat to Roe is unacceptable. Of course with either of those views it is unlikely that you would support any nominee Bush would put forward. I especially find it hard to credit the idea that Alito would represent a ‘special circumstance’ that would warrant a filibuster under the gang of 14 rules.

I will be shocked if a filibuster happens, and if it does I would be shocked if the Senate Republicans did not deploy the ‘nuclear’ option. Alito will be confirmed. I would not be surprised if he gets 70 or so votes.

Lastly, concerning the panel of Judges. As I indicated above, I found their testimony to be very useful in evaluating Alito. It was powerful stuff. There is some question though on whether or not it is a good idea in general, and on that I am not so sure. I don’t think that there are any issues such as conflict of interest that Senator Leahy implied might exist. The close association of these judges means that if personal feelings about one another were to interfere in the Judging of a case that would happen whether someone testified in this sort of setting or not. Leahy also called the panel ‘unprecedented’, which is true as far as an entire panel of judges goes, but not true as far as judges testifying in this sort of hearing.

I do see a possible future problem with this sort of thing though. Because the Judges testimony is so credible, it might have inappropriate weight in some cases. In this case, the judges were from a variety of ideological backgrounds and uniformly positive regarding Alito. There are appellate judges that are outside of the mainstream, and we don’t get a very good opportunity to evaluate the credibility or ideological views of the witnesses in this setting. I worry that a non-mainstream judge could be given unfair weight, particularly with a negative evaluation, of a very good judge. This seems to me to be a very real risk, particularly with the evolution of judicial confirmations into an adversarial process.