JURIST Guest Columnist Peter Shane
of Moritz College of Law, Ohio State University, says that the confirmation hearings for US Supreme Court nominee Judge Samuel Alito were a distressingly hollow ritual that reflected poorly on the nominee, the Senators questioning him, and the current state of the confirmation process...
o start candidly, I was opposed before the Alito hearings to the confirmation of Judge Samuel Alito to be Associate Justice of the Supreme Court, and I still am. One would expect, given the apparent inevitability of his confirmation, that those dissatisfied with the hearings would come disproportionately from the anti-Alito camp. But my reasons for dissatisfaction are only tangentially related to outcome, and I suspect many pro-Alito observers would share at least some of my qualms about the ritual we have just endured. The easiest way of putting my reservations is that the hearings struck me, in a variety of ways, as deeply, distressingly hollow.
They were hollow, of course, to the extent that the ritual was staged as an exercise in educating open-minded Senators about how to vote. There never seemed any likelihood that any Republican, including the pro-choice committee chairman, Senator Specter, would vote in opposition to the President's nominee. It seems likely that most committee Democrats will vote against Alito, with the possible choice to support him dictated less by any new appreciation of the nominee's positions or qualifications than by the political fallout of voting one way or the other.
They were hollow also in Republican claims for Alito and in Democrats' hopes for a staggering gaffe. The idea that Alito's personal values are irrelevant to his legal judgments and that he will serve simply as a distinguished neutral arbiter extracting objective results from unmediated readings of legal texts is just nonsense. But so is the idea that he is nothing other than a well-domesticated monster, who might be tricked into finally revealing, "I think anti-discrimination plaintiffs are crybabies," or, "The Constitution allows government to compel pregnancy."
There are at least five reasons for the hollowness of the hearing ritual. The first, of course, was Judge Alito's resolute determination to say relatively nothing that would shed light on his constitutional philosophy. My personal favorite moment in this was his insistence that, after 15 years on the bench, he had not given sufficient thought to the question to opine whether Congress could eliminate all federal court jurisdiction over First Amendment cases.
The second is that there was never a clear and open discussion about the relevance of personal and political values to judging, even though it was that very subject that lay at the heart of the hearings. The Democrats and Republicans seemed, instead, to imply two implausible accounts of how Alito's conservatism might affect his performance. In the Republican account, Alito is nothing but a fair and open-minded judgment machine without preconceptions; to the extent his conservatism matters, it matters only in that it counsels him to avoid the temptation of abandoning objective law for the pursuit of misguided liberal results. In the Democratic account, Alito has a covert agenda. No matter what he says, he probably has a list of legal outcomes he wants to achieve, and will use his tenure on the bench to consciously twist the law to those predetermined ends.
The Republican account is surely wrong, and one hopes that the Democrats' account is also. The reason why values matter to judging is because there is inevitably ambiguity in the resolution of hard legal cases. In resolving those ambiguities, values matter not because judges approach cases with a predetermined agenda, but because the sifting of evidence and of contesting arguments will be shaped critically by the judge's value predispositions. It is well known that people tend to accept evidence and argument too readily that conforms to their preconceptions, and to question disproportionately any evidence or argument that disconfirms their beliefs. Judge Alito's starting points in judging are profoundly conservative, as any fair reading of his judicial record attests. That's exactly why he was nominated. That doesn't mean he will never reach a liberal result. (Even Justice Scalia has opposed the criminalization of flag-burning and the incarceration of American citizens as enemy combatants.) I would even imagine that, in approaching the next abortion case, Justice-to-be Alito will approach it with what he sincerely experiences as an open mind – just as I bet he is sincerely open-minded on the existence of unicorns. Yet, I also know he will vote for a narrow reading of the right to privacy and, barring some radical life change, after 15 years on the Supreme Court, Samuel Alito will be known as a resolutely right-wing Justice. That's because he will subconsciously prefer theories of interpretation and legal and evidentiary arguments that cohere with his conservative predispositions. He won't even have to attend Federalist Society lunches to cement his reputation.
Because this discussion was never held, the hearings appeared hollow also because the Senators did not anchor their questioning in any clear criteria for accepting or rejecting judicial nominees. If one agrees that values matter and a Senator believes that values provide good reasons for accepting or rejecting nominees, then questioning Judge Alito should have been easy. He has stated his beliefs about hard legal questions on numerous occasions. One would have expected Senators to say something like, "Judge Alito, I cannot vote for you unless you affirm (repudiate) your prior statement, as follows:" If he tried to waffle, the Senator could just reiterate: "Judge, I'm asking you if you still stand behind your words. Do you or don't you?" Alternatively, if a Senator thinks only credentials matter, then questions along those lines would likewise have seemed easy. What we got instead were pious pledges of open-mindedness and rambling recitations of the obvious. Could I have been the only listener wondering if the next season of "24" could get an early start?
A fourth reason for the hollowness of the hearings is that the Senators did not understand the law they were discussing. This was most glaringly evident with respect to discussions of the unitary presidency. The "unitary presidency" is an unfortunate label for this dispute because no one actually argues whether the presidency is unitary; there's only one. Advocates of the unitary presidency argue from this, however, that the President is constitutionally entitled to supervise the exercise of any and all policy discretion vested in government officials outside Congress or the courts either by the Constitution or by statute. Thus, to cite as one example an OLC opinion from the Alito era, if Congress authorizes the Center for Disease Control to circulate pamphlets on AIDS, the President is constitutionally entitled to edit them. The theory is also why Justice Scalia, for example, thought independent counsels were unconstitutional.
This theory has nothing to do with whether the President has implicit national security powers, which is an entirely different debate. Advocates of an imperial presidency might be inclined to hold both beliefs, but they are analytically distinct, and many constitutional conservatives would vigorously deny the existence of unenumerated national security powers, even while defending the unitary presidency. What is inconsistent with the unitary presidency is the notion of so-called "independent" agencies. But no Senator asked Judge Alito to explain how he reconciles his support of the unitary presidency reading of the Constitution with his acknowledgment of the constitutionality of such agencies. (A constitutional pluralist – unlike Judge Alito – could persuasively argue that, in delegating authority to administrative agencies that is not inherent in Article II, Congress is entitled to specify the degree to which the President may exercise policy supervision over the use of such authority.) I am guessing the legal colloquies would have gone better had staff asked the legal questions.
Finally - and here, I expect pro-Alito observers are most likely to disagree - the hearings seemed hollow because a majority was willing to ignore autobiographical testimony that cannot possibly be viewed as candid. There actually appears to be a growing tradition in confirmation hearings in favor of the acceptability of two kinds of obfuscation - the self-characterization that is plainly misleading, but technically accurate, and the implausible claim of amnesia.
In 1986, then-Judge Scalia perfectly crystallized the first strategy in uttering that, as he was "embarrassed" to admit, "I cannot say that I have a fully framed omnibus view of the Constitution." I, for one, readily concede that Judge Scalia probably had never given a moment's thought to how he would apply the Fugitive Slave Clause of Article IV. But, if the point was to deny that he had a fully developed (even if not always observed) theory of constitutional interpretation that would almost invariably produce right-wing results, the statement was not true.
In 1991, then Judge Thomas most famously deployed the second strategy, claiming not to remember ever commenting on whether he thought Roe v. Wade
was properly decided.
Now, we have Judge Alito seeming to blend the two approaches in his account of the Concerned Alumni of Princeton. He has "no specific recollection of that organization," and was "rankled . . . for some time [about] the issue of ROTC" at Princeton. Note that Judge Alito does not deny remembering what CAP was. He does not claim that he joined CAP because of ROTC. He offers what presumably are technically accurate statements, rooted in improbable amnesia.
What's missing here, of course, is the central issue: The Office of Legal Counsel is supposed to be as close as the executive branch comes to having, within itself, the capacity for objective, dispassionate legal interpretation on behalf of the White House and other agencies. Why did Judge Alito think his membership in CAP or the Federalist Society qualified him for that role? (Hint: It's why he was nominated to the Supreme Court.)
Of course, one might say of all of this that we've seen it before; at least the ritual is not getting worse. But, actually, it is. The deployment of a panel of sitting judges to attest to Judge Alito's qualifications may not have been technically unethical, but it is very disturbing. What does this panel imply about Judge Alito's colleagues who did not testify? About future sitting judges who might not call their colleagues in support? The Republicans called their judges because, as is too often the case, they cared more about winning than about the possible negative impact on critical institutional norms – here, of judicial nonpartisanship. The judges added nothing significant to the record, but their example threatens a new form of politicization of the judiciary, all for no good reason.
In short, I found it a dismaying five days. But I'm not an unhappy man. A new season of "24" starts this week. Peter Shane is the Joseph S. Platt/Porter Wright Morris & Arthur Professor of Law and Director, Center for Interdisciplinary Law and Policy Studies at Moritz College of Law, Ohio State University