Alito's March to Confirmation -- And Why I Can Live With It

The Senate Judiciary Committe hearings on Alito's confirmation to the Supreme Court ended this week, and the consensus seems to be that, despite much hand-wringing on the Left, he is a shoo-in for confirmation. Unfortuantely, that apparently will not prevent either side from bombarding us with polemics over the next few weeks.

Schumer has apparently said that a filibuster is still a possibility, but a comet striking the Capitol in the next month is also a "possibility" and the latter seems to be the more likely of the two. In order to keep faith with their own "base," Schumer, Lieberman, Kennedy, et al. may make a stab at a filibuster, but it seems very unlikely that any such effort will amount to much given lackluster support for a filibuster among Democrats themselves. Diane Feinstein has already come out against a filibuster; Harry Reid and Patrick Leahy are thoroughly non-commital; and Senate staffers are apparently putting out the word that a filibuster is "very unlikely." There is also precious little support for a filibuster in the major liberal media. Indeed, the Washington Post has explicitly endorsed confirmation and theLA Times has at least implicitly done so as well. The New York Times is still a hold-out in this regard, arguing that Republican Senators who support abortion rights -- exactly those who would have to defect en masse to make a filibuster feasible -- should vote against Alito. But even the NYT appears to recognize that confirmation is a foregone conclusion and stops well short of urging a filibuster.

While I could not entirely escape the reporting on them, I intentionally ignored the hearings themselves, convinced that both the questions and answers would be thoroughly unenlightening on the substance and boring as theater. I gather from reading the post mortems (a particularly good one of which was Charles Isherwoods' in today's NYT Week In Review) that I was right on both counts.

But there was another reason as well. I don't think Judge Alito's confirmation is all that important.

There is a lot of sturm and drang out there right now about how Alito's ascension to the Supreme Court is, as the LA Times puts it, " likely to have an immediate impact in the areas of abortion, religion and the death penalty . . . [as well] as election campaigns and the environment." The New York Times, in the editorial linked above, argues that " there is every reason to believe that [Alito] will vote to overturn Roe v. Wade when the opportunity comes," as it may well even this term, since the Court already has two abortion cases on its calendar for this year.

It is certainly possible that such predictions will come true. But I doubt it. And, even if they did, that possibility holds nowhere near the terror for me that it apparently does for some people. On the abortion issue in particular, I think the importance of Roe v Wade is vastly overblown. (See this earlier post for a fuller discussion of this issue.) Indeed, while I am a firm supporter of abortion rights (at least in the first half of a pregnancy), overruling Roe would not end such rights (at least outside Kansas and Utah) and the ability to actually have a debate on this issue would be like lancing a boil. So, even if the NYT is right about Alito and abortion, that fact is not really all that much of a concern for me even though I would be opposed to any such decision.

But, abortion aside, I think the opposition to and concern about Alito's impact is vastly overblown.

First, I don't think radical changes in the law are likely and I certainly don't think they are imminent. For one thing, there are too many constraints to allow any one Justice -- or even a combination of Justices -- to rapidly make radical changes in the law. Stare decisis is one of those and the need to assemble a majority among the nine members of the Court is another. But most important of all is the humbling effect of having the final word on matters of enormous importance to the Country. It is easy to be a radical when your radicalism doesn't matter. It is far harder to endorse radical change when what you decide instantly becomes the law of the land. In any but the most ideologically committed, the weight of such responsibility imposes a powerful imperative to "go slowly."

Alito does not strike me as an idealogue. Yes, he tends to believe that the Constitution should be given the meaning that it had for the drafters and that, where that meaning no longer meets current exegencies, the remedy is to amend the Constitution rather than ask the Court to change or expand on the original intent. But, by the way, so did Sandra Day O'Connor. As she famously told the Senate Judiciary Committee in 1981: ''I do well understand the difference between legislating and judging. As a judge, it is not my function to develop public policy.'' Yet for all of that, Justice O'Connor is now a viewed by the Left as the near apotheosis of "the good Justice":

"I hope the president will select someone who meets the high standards that she set and that can bring the nation together, as she did," Sen. Edward Kennedy, D-Mass., said on the day O'Connor made her retirement announcement.

"We hope the president chooses someone thoughtful, mainstream, pragmatic -- someone just like Sandra Day O'Connor," said Sen. Charles Schumer, D-N.Y., on the same day.

In short, there is not nearly so much difference between O'Connor's and Alito's judicial philosphies as one might assume by reading the press releases. Nor, it seems to me, is there all that much difference in temperment. Alito is no Bork (thank God). He is not even a Thomas. He shares with O'Connor an appealing humility, a willingness to be open-minded, and dare I say it, a principled pragmatism that I find reassuring. As O'Conner's own history demonstrates, funny things happen to such people once they reach the Supreme Court.

In this regard, a 1981 NYT Op-Ed piece by Anthony Lewis on Sandra Day O'Connor seems as apt today with respect to Samuel Alito as it did then, no doubt, with regard to Justice O'Connor. I quote at length becuase I think it is well worth reading:

"I do well understand the difference between legislating and judging,'' Sandra Day O'Connor told the Senate Judiciary Committee as her confirmation hearings began. ''As a judge, it is not my function to develop public policy.'' And last week, when the Senate voted 99-0 to approve her nomination to the Supreme Court, President Reagan expressed his pleasure in a statement praising her judicial philosophy as ''one of restraint.''

Those are the pieties that are likely to surround any Supreme Court appointment nowadays. The conservatives who hold political power often speak of the need for judicial restraint, for strict construction of the Constitution, for judges leaving policy decisions to legislators. The dramatic element in this nomination - the first appointment of a woman to the Court - did not at all change the talk about desirable judicial philosophy.

But Justice O'Connor, as she now goes to work in that great marble palace on Capitol Hill, will find that the pieties do not get her very far. She no doubt knows that already. It is hard work interpreting the fundamental law of this country, and what is hard about it is that there are no formulas for decision. A few examples, new and old, will indicate how unhelpful the jurisprudence of a confirmation hearing is in deciding actual cases.

[Examples omitted]

The point is really that phrases such as ''equal protection'' cannot be defined by formulas. Much of the Constitution consists of concepts - ''due process,'' ''interstate commerce,'' ''unreasonable searches'' - that can only be given meaning in concrete cases. And the American system from the beginning has given the defining function to judges.

Because the Constitution is the supreme law of this country, and because its grand words acquire meaning in lawsuits, judges do make policy. There is no way for them to escape that burden. Whether they hold segregation constitutional or unconstitutional, judges make policy.

Some judges are by temperament less bound by precedent, readier to apply the Constitution in novel ways. That was true of the old conservatives on the Supreme Court who erected fences around property - who held minimum wage laws and restrictions on child labor unconstitutional, for example. It was true of the late William O. Douglas in his expansive views on freedom of speech.

But those abstract phrases of the confirmation hearing do not have much to do with what either conservatives or liberals seek in a Supreme Court justice. They are really interested in a nominee's substantive values: how she feels in her heart of hearts about the values of free speech, official secrecy, fair procedure, state power, religious freedom and so on.

The strange thing is that those ultimate truths are seldom known before a Supreme Court justice goes on that bench. Years ago a member of the Court remarked: ''In this job a man is reduced to the irreducible minimum.'' That is to say, the justice has to peel off all those layers of convention, of views expressed to go along with some faction or friend, and find out who he is inside; who she is. The process is about to begin with Sandra Day O'Connor, and it will be far more interesting to watch than her clever fencing with senators.

I want to repeat that last thought becuase it seems to me fundamental:

" 'In this job a man is reduced to the irreducible minimum.' That is to say, the justice has to peel off all those layers of convention, of views expressed to go along with some faction or friend, and find out who he is inside; who she is. The process is about to begin with [Samuel Alito] and it will be far more interesting to watch than [his] clever fencing with senators."

The thing that gives me comfort about Alito is that I sense that he is, at his core, a decent man. And, when the crucible that is the Supreme Court forces him to "to peel off all those layers of . . . views expressed to go along with some faction or friend and find out who he is inside," I suspect that we are likely to end up being as comfortable with him as we have become with Justice O'Connor. This is not to say that we will agree with everything he does. Far from it. But it is to say that he, like O'Connor before him, is likely to be seen as an intelligent, thoughtful, responsbile, and fully integral voice in the ongoing debate that is the essence of democracy. I can ask no more of a nominee.