By Greg O’Brien, Codfish Press
When the judicial dust settles (the fallout is expected to linger) on confirmation hearings over the Supreme Court nomination of Judge Samuel A. Alito Jr.—the unaffected, self-possessed U.S. Court of Appeals judge for the Third Circuit in Philadelphia, a street-smart Jersey boy, who to date has tiptoed past the political thorns of abortion, presidential powers, congressional authority and voting rights, ducking a salvo of Democratic derision along the way—will likely be sitting pretty on the highest bench, as perhaps he should, given a thorough review of his judicial record and statements.
A head count indicates the ayes have it. All that’s left is to embarrass the man or bring his wife again to tears, with the exception of one critical issue: Does Alito have an agenda, a pre-disposed conservative point of view that will ignore the law? He says he doesn’t; congressional probing in a way that discerns whether he does (rather than what appears to be an organized Democratic strategy to discomfit him and whack George Bush at the same time) will tell. So far the session to date is short on substance: Alito’s responses and the line of congressional questioning, which seems to parallel a terrorist interrogation.
“A judge’s only obligation—and it’s a solemn obligation—is to the rule of law,” Alito has testified. “And what that means is that in every single case, the judge has to do what the law requires.”
That being the case, all Supreme Court judges ought to be swing votes at various times of conscience.
The fact that Bush, a conservative, would nominate a fellow conservative to the Supreme Court is no surprise, just as it would be no revelation if a Democrat in the White House nominated a liberal. Think Ted Kennedy, if he were president and faced a High Court opening, would carry judicial water for a right-winger?
If Alito—because of his calculated responses or the reality of his political beliefs—cannot convince the Congress and the American people that he has no pre-disposition to the law, his nomination should be killed, and a message sent to Bush and future White House occupants on both sides of the aisle that this nation will not tolerate a Supreme Court justice who only votes a political persuasion. If Alito can convince us that he is “open-minded” to the law—and there is reason to consider he may be—then his nomination ought to be approved without a political sideshow.
The late Supreme Court Justice Potter Stewart, an Eisenhower appointment, had it right when he said, “The mark of a good judge is a judge whose opinion you can read and…have no idea if the judge is a man or a woman, Republican or Democrat, a Christian or Jew…You just know he or she was a good judge. I never put a good label on myself, except trying to be a good lawyer.”
What are you, Judge Alito?