Wednesday, January 11, 2006

Hard at work

Alarmed When He Took Over
Legal Fiction catches this from a report on the Alito hearings:
A contagious wave of yawns spread across the dais, from Specter to Sen. Charles E. Schumer (D-N.Y.) to Sen. Russell Feingold (D-Wis.), and crested in a brief catnap for Sen. Sam Brownback (R-Kan.).
In other news, Alito apparently thinks the idea of "one man, one vote" is A-OK, but that the courts had taken it to the extreme (not sure if that's a direct quote). Thanks to Chuck Grassley for digging into that contentious issue of the day.

And special thanks to Orrin Hatch for extracting from Alito the grudging acknowledgment that he thinks he's a fair judge, and that Alito doesn't find himself biased. That's a load off.

Campus Progress rightly notes that Alito's answers on abortion are about the equivalent of the classic SNL "Amazing Colossal President" sketch.

"Is it true President Carter is now over 100 feet tall?"

"Absolutely not. That's completely untrue."

"Is it true the President is over 90 feet tall?"

"No comment."
Compare the line of questioning: Is Griswold good law? Yes. Is Brown v. Board of Ed. good law? Yes. Is Roe v. Wade good law? I can't discuss it.

I don't mind that he thinks (or is prepared too pretend) Griswold is OK. Nor do I think he's wrong in supporting Brown v. Board of Ed, though I think his logic in supporting it was touchy.

Does he not think that the issue of a right to marital privacy will recur? I do. I think that issues central to Griswold (emanations and penumbras) will recur in debates over rights for homosexuals, medical privacy, use of private databases by law enforcement, etc. Why is it OK to prejudge those issues, but he has to be coy about Roe?

Bear in mind that, while Casey upheld "the central holding of Roe," much of the actual framework of the decision was scrapped. Commenting on Roe would not necessarily reveal anything about how he'd rule on a given case (though it's as close as we'll get to a straight question about abortion in the meaningless kabuki that is a Supreme Court nomination hearing).

There's something disappointing about the shallowness of the discussion. It isn't that the questions are bad (though they aren't great), it's that we live in an age when expressing a nuanced view on an issue is a career killer.

If we can't have a serious debate over judicial philosophy in the forum of a Senate confirmation hearing, when can we? If he lacks the ability to present a strong defense of a clear judicial philosophy, why should he be among the nine judges responsible for giving the final word on many complex legal questions? If he's able to do it, why doesn't he?