Saturday, January 07, 2006

Alito Needs a Different Job

Each time the president nominates a new Supreme Court justice, there are shrill voices ready to denounce the nominee. These voices are generally unworthy of serious consideration. Condemnation, as a thoughtless reflex, may emerge from the muddled menagerie that passes for a sort of "left wing" in the modern United States. It may come from the poisonous stew that passes for "right wing." Neither source has distinguished itself for reliance on facts, or careful consideration of evidence. Neither has demonstrated any significant knowledge of constitutional law, or reliance on the fundamental principles which formed our nation. Both amount to little more than "I want what I want, I want it now, and it must be in the Constitution somewhere."

When Samuel Alito, Jr. was nominated for a seat on the Supreme Court of the United States, there was no cause to line up for or against confirmation. No member of the United States Senate, few if any of the citizens those senators represent, knew enough about the man. Oh, the senate did confirm him for other federal judicial positions. But that is generally a pretty routine process. To confirm a nominee for a judicial position bound to follow precedents of the Supreme Court is one thing. To confirm the same person for a seat on the court that makes the precedents is quite another. And the rest of us didn't know much more than what hurried news articles slapped together.

Some time has passed, and the man's record has begun to be revealed. It is not his worth as a human being, but whether he is the right choice for a particular job that are at issue. Here is the opinion of one bus driver in a somewhat shrunken midwestern city: Samuel Alito is not qualified to expound the Constitution of the United States. Confirmation of Alito to sit on the Supreme Court would be an insult to our Republic, and a slap in the face to the Framers of our fundamental law.

Two broad trends can be traced in the construction of Constitutional law for our nation. One relies on the Constitution to protect individual freedom. It limits the jurisdiction of government, restrains government intrusion into private decisions. It endeavors to keep citizen participation in government free from intimidation by power and wealth, concentrated in a small number of private hands. This infuriates anyone in a position of power and authority, who naturally resents limitations on their own exercise of power. But it has been a great thing for the people of the United States.

The other trend grants almost unlimited power to government. In a cruel perversion of constitutional liberty, this trend would allow a small number of influential and well-placed men, as well as self-perpetuating political machines, to control the levers of unrestricted state power. Samuel Alito has placed himself, throughout his life, in this camp. Mark Twain wrote that nobody's life, liberty or property are safe while the legislature is in session. With Samuel Alito on the Supreme Court, there would be nobody on watch to restrain the legislature. It would literally be employing the fox to guard the chicken coop.

This has nothing to do with his position on Roe v. Wade. If there is one thing certain about the confirmation process, nobody will ever find out his true intent regarding Roe v. Wade unless and until he sits on the court and a controversy concerning abortion actually comes up on the docket. It is nearly impossible to penetrate the innermost soul of a candidate for any office and discover their true intentions. It is incredibly easy to give bland, deceptive answers to any question, without actually lying.

Besides, how a nominee may vote on some hypothetical future case truly is irrelevant to either a nomination or confirmation which retains any pretense of integrity. No person is qualified to be a justice of the Supreme Court who comes to the confirmation process with an agenda either to overturn, or to preserve a all costs, any existing precedent. Samuel Alito clearly has had such an agenda for his entire life as a law student and practicing attorney. He would make an excellent litigator for his causes. He cannot dispassionately judge them.

In this light, Thurgood Marshall would have been a terrible choice for the Supreme Court in 1952, when he had a record of actively seeking to make new constitutional law and overturn existing Supreme Court precedents. The ruling in Brown v. Board of Education had just barely enough force to actually change our national culture precisely because the most conservative judges joined in a unamimous decision. Putting Marshall on the court, then voting 5-4 for what he had sought as a trial lawyer, would not have had the same impact at all. By the time Marshall was actually nominated and confirmed, older and more dispassionate justices had already accepted most of what he advocated as valid constitutional interpretation. Marshall came on the court not to advance his agenda, but to handle new and unforseeable controversies, after his advocacy had been fully vindicated.

Applying for a position in the Justice Department under then-president Ronald Reagan, Alito wrote that he was attracted to constitutional law "in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment." Most of the case law he profoundly disagrees with remains settled law. It would be wrong to confirm any nominee who said "I will never reconsider those precedents for any reason." It is equally wrong to confirm a nominee whose honest attitude is "just give me a chance to set the clock back."

Reapportionment is not an issue that most people even think about any more. The line of cases Alito referred to began with Baker v. Carr in 1962. At that time, state legislatures were free to draw district lines that had forty times as many voters for one state senator as the number in a neighboring district. Alito, in short, questions whether the Supreme Court, as guardian and arbiter of the federal constitution, should "insure that the democratic process is not rigged to thwart the will of the majority" (Adam Cohen, New York Times, Jan 3, 2006, page A18).

Alexander Hamilton stated in several articles of The Federalist Papers that a constitution is a mere piece of paper, unless the legislature, and the executive, are confined to the exercise of powers granted by constitutional authority. For this purpose, the courts must serve as a restraint on the legislature. In fact, the courts must declare null and void any legislative enactment that violates the constitution. This duty, Samuel Alito is clearly unwilling to fulfill. His concept of constitutional government corresponds closely to that of Cornelius Vanderbilt, who remarked "Law? Who cares about law? Hain't I got the power?" (One wonders what Vanderbilt's genteel descendants would think if they could meet their illustrious ancestor in the flesh).

Alito is not without role models among the founding fathers. Pinckney of South Carolina, and Benjamin Harrison of Virginia come to mind. Hamilton himself, while serving in the cabinet, advocated strong executive government. James Madison's valiant efforts to secure explicit constitutional restraints on state governments, to defend the same liberties guaranteed by the federal Bill of Rights, were unsuccessful. It took a full-fledged Civil War to bring the capacity for tyranny by individual state legislatures under the restraints of the Fourteenth Amendment, largely vindicating Madison.

A constitution, or an amendment, is only as good as the judges who apply it. With the right logic, and a string of legal arguments long enough, any lawyer can affirm that green is red, or night is day. The unfolding of Samuel Alito's record clearly shows that the job of expounding a constitution is not matched by his qualifications. He needs to apply for another job, more suited to his talents and inclinations.

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