George Will vs. Himself on the role of the Supreme Court of the United States
George Will is a thorough student of history and government. He has a keen eye for the foundation of any issue, and a sharp intellect. In his widely syndicated Op-Ed columns, he generally cuts through prevailing political rhetoric, to identify fundamental questions of principle. Then, if it is convenient, he meanders off into meaningless muddle, determined to discredit whoever may be in the way of the outcome he desires from a political debate. He totally loses sight of the principles he first enunciated.
So it is with his initial response to the nomination of Samuel Alito to the Supreme Court of the United States.
There are demagogues abroad in our nation, so fervently determined to get their personal preferences written into law, that they forget there is a constitution which defines (and limits) the powers of our governments. Not so George Will. He never insinuates that the primary criterion for a justice of the Supreme Court is "will this candidate vote to approve what I want?" There are self-styled conservatives who have forgotten that we have a government of limited powers. All they want is a compliant set of justices who will give the legislature a free ticket to do anything it chooses, so long as they command a legislative majority. George Will does not stoop so low.
Will recognizes that "Our nation properly takes its political bearings, always, from the Constitution, properly construed on the basis of deep immersion in the intellectual ferment of the founding era that produced it. That is why our democracy inescapably functions under some degree of judicial supervision." This man has clearly read The Federalist Papers, both Hamilton's contributions and Madison's, as well as those by John Jay. No doubt he is also familiar with Chief Justice Marshall's reminder that "it is a constitution we are expounding."
Will asserts that "The nation has long needed a serious debate about the proper nature of that supervision." The question he proposes we should debate is, "Should the Constitution be treated as so much plastic, so changeable that it enables justices to reach whatever social outcomes "results" they would consider desirable? If so, in what sense does the Constitution still constitute the nation?" Will expresses conviction that the Alito nomination will generate that debate.
But Will is drawn off the high road of principle, to chase a will 'o the wisp into a bog of political name-calling. What he most fervently desires is for our discredited, incompetent and deservedly unpopular president to use this nomination as leverage "to challenge his Democratic critics." Accordingly, Will asserts that these critics have only two arguments to make against Alito's confirmation, both of them "intellectually disreputable." Indeed, the arguments Will offers to put in the mouths of senate democrats ARE intellectually disreputable. Anyone critical of Alito's record, Democrat, Republican or independent, would do well to refrain from using them.
Instead, let us hope that there are women and men serving in the United States Senate who will put Judge Alito to the test of the very questions George Will poses. The debate he eloquently defines should not be aborted by the fait accompli he seeks.
Would Judge Alito treat the Constitution as so much plastic, so changeable that it enables him to reach whatever results he considers desirable? Judge Alito wrote a dissenting opinion in 1991, to uphold the constitutionality of a Pennsylvania statute requiring a married woman to notify her husband before getting an abortion. Was there a sound constitutional basis to his dissent? Or did he treat the Constitution as so much plastic, to enable him to reach the social outcome he preferred? The result he arrived at is not what the senate should examine. The caterwauling of pro-abortion and anti-abortion lobbyists should be a mere annoyance to the confirmation process. How he arrived at that result, how he construed the constitution, whether he was simply overriding the plain meaning of the supreme law of the land to advance his own agenda, is of critical importance.
What has Judge Alito recognized as the proper nature for judicial supervision of legislative acts? Would he agree with Alexander Hamilton that "The complete independence of the courts is peculiarly essential in a limited constitution" by which Hamilton understood "one which contains certain specified exceptions to legislative authority"? (Never mind that shabby subterfuge, "a living constitution," this is a limited constitution we are expounding). Can limitations of this kind be preserved in any other way than through courts of justice "whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void"? Is there any way to reserve the rights and privileges of the people in any practical sense without this judicial supervision?
We have, today, many voices raised by state and federal legislators, asserting that courts are usurping distinctly legislative functions. In light of Madison's assertion that "no man may be a judge of his own cause," and that this applies still more to an entire body of men, how has Judge Alito, in his lengthy judicial career, distinguished between usurpation of legislative functions, and declaring legislative acts that are contrary to the constitution void?
Let us not neglect to inquire about constitutional issues of vital concern to millions of working families across the nation, a large portion of them Evangelical Christians, a good part of the rest Christians of the Roman Catholic faith. What is Judge Alito's record on questions that have come before the federal courts concerning the competing interests of employers and employees, of corporate distributors and individual consumers? How does he ground his decisions on such questions? Has he found a clear and unmistakable command in the Constitution, to which he is merely an obedient servant? Or does he twist the broad language of that document, to arrive at a result that pleases him?
Certainly both judges and legislators are capable of making mistakes, and have each been wrong at times. These are important questions, which should be presented to Judge Alito in a manner that provides the nation with the debate that Will succinctly poses. The answers to these questions do not fall neatly into "conservative" and "liberal" stereotypes.
For example, many congressional "liberals" have a knee-jerk addiction to broad federal regulatory powers. Even the devastation wreaked by George W. Bush exercising such powers has not cured this predilection. One of Chief Justice Rehnquist's contributions, during his term on the court, was to lead the way in decisions curbing congressional use of the power to regulate interstate commerce, which has increasingly been used as a free ride to regulate anything and everything.
However, the specific cases brought before the court nullified federal laws which banned guns from the vicinity of schools, and would have allowed federal civil suits by rape victims against alleged perpetrators. Perhaps a future decision would strike down the absurdity of applying a depression-era law regulating agricultural commodities, to justify federal prosecution of a woman for "interstate trafficking in pornography" over poor judgment in taking family photos with a throwaway camera (manufactured in another state). But note well, that state laws providing lengthy prison terms for carrying guns near schools, and for rape, were left entirely intact. The court simply found that these did not fall under the enumerated powers delegated to the federal level of government by the Constitution.
At least two Supreme Court decisions of the past fifteen years have pitted a gay rights agenda on the one hand against liberties guaranteed by the Bill of Rights on the other. The better known was Boy Scouts of America v. Dale. A less well known, but equally important case, was John J. Hurley and South Boston Allied War Veterans Council, v. Irish American Gay, Lesbian And Bisexual Group Of Boston. In both cases, the court refused to define a private organization's free association and free speech as a "public accomodation" that anyone could crash at will or by law.
Rehnquist and Scalia joined both majorities, Stevens and Souter dissenting on the Boy Scout case, while Souter wrote the opinion of the court on the Boston case. On the other hand, when the general right to privacy of all citizens coincided with the preferred outcome of two homosexual plaintiffs, Lawrence v. Texas was decided in a manner that made advocates of unfettered legislative discretion howl.
Indeed, let us have the debate on the proper nature of judicial supervision. Does existing judicial precedent intrude on proper legislative functions? Or does it protect the rights of the people from legislative tyranny? Are the critics of "judicial activism" seeking to protect the people from sweeping judicial mandates? Or are they seeking the "freedom" to impose restrictions on the people? Does the Constitution immunize commercial businesses from regulation intended to protect employees and consumers? Communists have always charged that it does. Does Judge Alito agree? Is a mutli-billion dollar corporation a “person” in the eyes of the Constitution, equal to any other person?
Let us have no argument for some kind of "balancing act" as to the supposedly "conservative" or "liberal" bias of the Supreme Court. Will pre-emptively criticizes that subterfuge, and it has no place in the confirmation process. Let us have specific examples of how, and when, the constitution has been treated as mere plastic. Let us have Judge Alito's forthright analysis of such examples. Let the senate provide the American people with an open and detailed factual debate, examined through the lens of time-honored legal standards. And then, let each senator consider carefully whether this is a man who can be entrusted to expound this constitution, as a constitution, accurately and honestly. Because it is the senate, and the senate alone, that must consent to the nomination.