[Note: This article was written by William Saunders, Human Rights Counsel for FRC.]
Yesterday, the Supreme Court closed its 2006/07 term by announcing several 5-4 decisions. In some, Justice Samuel Alito voted with a so-called “conservative” majority. Does that mean Alito is a “bad” justice, and, even, that his confirmation a year ago was a mistake, or that Congress failed in its duty when it gave its “advice and consent” to the President’s nomination?
The answer, I would suggest, is clearly “no” to all these questions. To understand why, let’s return to Alito’s confirmation hearings before the Senate Judiciary Committee.
The most telling testimony, in my opinion, came from the American Bar Association and, later, from a panel of judges who serve with Alito on the Sixth Circuit Court of Appeals. No one is better placed to judge his suitability to sit on the Supreme Court that than those who have served with him as judges on the Sixth Circuit. Such people have seen him in action, as a judge, in all contexts, on the bench and at private judicial conferences. What did these judges say?
One of them, Judge Becker, wisely noted that there are four criteria to consider – temperament, integrity, intellect, and approach to the law. How did Becker, who has served with Alito as a judge for 15 years, evaluate him by these standards?
As to temperament, he said “Sam Alito is a wonderful human being. He's gentle, considerate, unfailingly polite, decent, kind, patient and generous. He's modest and self-effacing. He shuns praise.”
What did Becker have to say on the other 3 criteria? On integrity: “Sam Alito is a soul of honor.” On intellect: “Judge Alito's intellect is of a very high order. He's brilliant, he's highly analytical and meticulous and careful in his comments and his written work.” On judicial philosophy: “He's a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be.”
Becker’s colleagues agreed unanimously with him regarding the qualifications of Judge Alito. Please go to CSPN’s archives and see for yourself. Remember – they have served for years and years with him (and some have known him, and worked with him in other contexts, for more than 30 years).
Also, highly relevant, was the investigation by the American Bar Association. Please read carefully what the ABA panel reported to the Senate Judiciary Committee –
“In the case of Judge Alito, circuit members combined to contact well over 2,000 individuals throughout this nation. Those contacts cut across virtually every demographic consideration and it included judges, lawyers and members of the general community. Thereafter, circuit members interviewed more than 300 people who knew, had worked with, or had substantial knowledge of the nominee. All interviews regarding the nominee were fully confidential to assure the most candid of assessments. Judge Alito has created a substantial written record over his years of public service. Our three reading groups worked collaboratively to read and evaluate nearly 350 of his published opinions, several dozen of his unpublished opinions, a number of his Supreme Court oral argument transcripts and corresponding briefs, and other articles and legal memos. We are ultimately persuaded that Judge Alito has, throughout his 15 years on the federal bench, established a record of both proper judicial conduct and even-handed application in seeking to do what is fundamentally fair. As such, on the basis of its comprehensive investigation and with one recusal, the standing committee unanimously concluded that Judge Samuel A. Alito Jr. is well qualified to serve as associate justice on the United States Supreme Court. His integrity, his professional competence and his judicial temperament are, indeed, found to be of the highest standard.”
Let me repeat the last sentence from the ABA’s testimony: “His integrity, his professional competence and his judicial temperament are, indeed, found to be of the highest standard.” Could anyone reasonably want any other kind of Supreme Court Justice?
Yet, Alito was barely passed out of the Judiciary Committee, and 42 Senators voted against him on the Senate floor. How can one explain that, given the praise heaped upon him by the (not-conservative) ABA and by his fellow 6th Circuit judges? In one word, “politics,” and I submit it is very unwise politics at that. It reflects a desire to accomplish policy through the courts (thus, requiring a potential justice to hold the ‘right” views on particular issues and voting against him if he doesn’t). However our constitution gives the policy-making responsibility to the legislature, not the courts. When courts step in to decide disputed social issues, they leave them, ironically, unsettled. In the legislatures, people of opposing views will argue, compromise and horse-trade. They will arrive at a policy position that most of the people accept. It isn’t pretty, but it’s democracy. Trying to short-circuit it by turning judges into policymakers is unwise…and untrue to America’s founding principles.