The Constitution Can Change, But Can Justice Alito?
Senators have announced they will not be able to complete the confirmation of Sam Alito by Christmas, as the president requested. Why not? Because Alito has spent fifteen years writing opinions as a member of the 3rd Circuit Court of Appeals. These must be reviewed. But how long does that take? Considering the number of Senators involved, and the size of the staff of each, how long does it take? Friends of mine, savvy conservatives, suggest a close reading of every opinion is neccessary. But how close? What exactly are we looking for?
How do you evaluate the qualifications of a prospective Supreme Court Justice?
Are we looking for a man who will vote the right way on each issue? Are we reading these legal analyses to sift them, hoping a campaign promise or political platform will emerge? No. That's for politicians. A justice is not a politician. He is not a legislator. His personal opinions and policy positions on various issues are irrelevant. He makes no campaign promises. He puts on his black robe owing nothing to anyone. He has no promises to keep, beyond that highest promise to faithfully defend the Constitution. And the title of this post may be misleading, but maybe it isn't. Can Alito Change? Will he be another David-the Disappointment-Souther? Well, it makes no difference to me if Alito's opinions change. But assuming he has the required judicial character and philosophy (which Souter never had), those things better not change. My accountant needs to be able to handle basic addition and subtraction (especially subtraction). And judges need to be able to read two dozen written approaches to the same problem, evaluate each in light of the other and in light of the Constitution and settle which approach is required by that sublime document. Is that too much to ask? Again, it's a math problem.
The Supreme Court generally faces only two questions:
Does the Constitution allow the feds, the state or local government to enact the law that led to the present conflict? And if the law is Constitutional, was it executed in a manner respecting the rights of the parties?
The Court faces two questions, and the entire process, while extraordinarily sophisticated, is really a math problem. The judges' personal opinions, life experience, race, sex, creed, or handicap, golf or otherwise, are all completely irrelevant. Just like in math class.
Prospective Judges should be evaluated based on their scholarship, their knowledge of the law, and their judicial character, i.e., their commitment to objective, im-personal analysis, to following the law and applying it honestly, even when they disagree with the controlling law (the Constitution) as it is written.
And this is where things have gone astray.
The Court became political when its judges stopped setting aside their personal opinions.
What the Court needs today is a panel of judges who will again set aside their personal opinions, and rule according to the written law in question.
I hope nothing I have written elsewhere has created the impression that the Constitution cannot change. The Constitution can change. It can adapt; it can be malleable. It may not be a "living document" as that word is used today, but neither is it written in stone.
The Constitution can be changed. But changing the controlling law when such change is needed, is not the duty of the Court. It is the duty of the legislators. When the Court rewrites the Constitution (not talking here about every opinion's tiny, interstitial changes), the public feels disenfranchised and bitter. Fans of an Activist Court might argue that larger numbers of the public feel disenfranchised when the problems or oversights in the Constitution are left to the stalagtite constitutional amendment process. I won't refute that point here--but I disagree. Either way, changes of the past are behind us. What I'm against is future judicial activism.
In the case of Alito, I think one careful reading of his opinions is all that is required to evaluate his character, scholarship, and temperament. A slower reading, and re-reading, and rereading again smacks of blatant politics, of a party desperately searching for those phrases they can twist, take out of context, or otherwise manipulate in an outright political smear campaign. Call me cynical, but "fool me once...."