Alito to know, you to find out
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One reason we do not select Supreme Court justices by lottery is that they ought to stand for something more than their own good luck at being nominated.
Ideologies are not supposed to be the costume of the moment but, rather, a mantle of firm principles accumulated and stitched together through long life's study. In addition to vetting nominees for madness and maybe head-lice, confirmation is meant to test the soundness and origins of their convictions so the country knows what it is getting.
Certainly it was never intended to be the combination of slippery fiction, telling winks and pious deceit that passes for the process now taking form around Samuel A. Alito Jr.
Early on, there was hope Americans would know something concrete about the man's beliefs. Right after his nomination, reporters got hold of Judge Alito's 90-year-old mother. Like many other mothers, she was proud of her son. Like other 90-year-olds, she grew up in an era in which candor was still admirable. So the following words escaped her mouth:
"Of course he's against abortion." Imagine everyone's shock. A lifelong social conservative and observant Roman Catholic opposes abortion. But this was back in October, when Judge Alito was still a conservative.
Today, if we are to believe Sen. Dianne Feinstein, D-Abortion, Judge Alito has disavowed the certitude of his youth. Senators were shocked to discover a memorandum, part of a job application for the Reagan White House, in which the young Mr. Alito denounced racial quotas and said he did not believe the Constitution guaranteed a right to abortion.
Emerging from a meeting with the nominee, Sen. Feinstein said he told her this: "First of all, it was different then: I was an advocate seeking a job, it was a political job, and that was 1985. I'm now a judge, you know. I've been on the circuit court for 15 years. And it's very different. I'm not an advocate. I don't give heed to my personal views. What I do is interpret the law."
Now, let us put aside for the moment the fact that interpreting the law is what got us Roe v. Wade in the first place. Judges are constantly interpreting the law, but they come to their positions after many years of forming opinions and, if they are capable of thought, acquiring entire belief systems. Harry Blackmun, the author of Roe, might have grown in the office after his nomination, but he was well in touch with the quirks that often inform decision-making.
"We're all eccentrics. We're nine prima donnas," he once said. He did not say how they attained that eccentricity, but it is a sure bet it did not come from not thinking about things. All views are personal. That's why we use computers for intricate mathematical processes, but we nominate persons to fit law to humanity.
There is much to be said -- and much is said -- for the principle that judges should make decisions based on law, both as written and as decided in past cases, rather than by their opinions. The term stare decisis, Latin for "to stand by things decided" is now tossed about in hearings and judicial vettings as the operative codeword for "this man will let well enough alone." Imagine if this answer had been given to questions about Plessy v. Ferguson, or Dred Scott.
In 1987, Robert Bork candidly told senators he thought Roe v. Wade was wrongly decided and should be overruled. He currently enjoys retirement as a scholar at various right-wing think tanks. In the wake of Robert Bork's disastrous honesty, a fascinating minuet is now danced before committees.
Potential nominees come before conservatives who eye them like contractors, attempting to figure out the ideological superstructure that supports them and, if they think Roe v. Wade will be overturned, pass them along.
Democrats in the Senate look for assurances that the nominees believe the Constitution guarantees a "right to privacy" -- the underpinning of Roe v. Wade and its precedents -- and hope they have found a Sandra Day O'Connor or David Souter.
The nominee, of course, hopes nobody has seen anything of significance, rather the way I'm always hoping the airport screeners won't notice the flask of vodka in my carry-on. This is how we choose justices: by teaching scholars to dissemble skillfully enough that we will entrust them with the Constitution.
"It's like drawing a complete picture of a dinosaur from one tiny and ambiguous bone chip," says Judge Bork.
For the record, I predict that Samuel A. Alito Jr. would deliver opinions compatible with conservative political philosophies. I suggest he is not sympathetic to the intellectual underpinnings of Roe v. Wade and, if the case were to be re-argued in some later form, would likely not find a constitutional guarantee that precludes states from restricting abortion.
Why this certitude? His mother says so. I suspect that by the time he's confirmed, she'll be the only one who knows him.
First Published November 27, 2005 12:00 am