Now that Chief Justice John Roberts has been confirmed and gone to work, the Senate confirmation spotlight shines on Judge Samuel Alito. These hearings could be particularly rancorous, due to Alito’s potential to change the balance of power on the Supreme Court for decades to come.
When the hearings begin in the Senate Judiciary Committee, Alito should not be expected to commit himself on specific questions that may come before the court, such as abortion. That is not to say, however, that he should refuse to explain his general views and perspectives that relate to the performance of a Supreme Court justice. He bears some responsibility for ensuring the effectiveness of Senate participation in the confirmation process.
There are a number of topics that qualify for investigation, and the questions asked of the nominee should be tailored to elicit direct and meaningful replies.
For example, it is appropriate for Alito to be questioned about his perspective on the role of the Supreme Court in constitutional governance. Does he consider the court to have a legitimate role to play in helping shape national policy in constitutional areas where its interpretations are authoritative? Or, should it focus primarily on the merits of specific cases without concern for future consequences and broader implications?
Justice Benjamin Cardozo said the creative element in the judicial process is found in difficult cases, for in them uncertainty is inevitable and the process is not discovery, but creation. For Cardozo, these tough decisions are made largely by the judge’s conception of the ends and functions of law, and thus they are questions of philosophy. Alito should be expected to enlighten us as to his views on such ends and functions.
He should be asked directly about his perspective on the philosophy of law. Would he be primarily analytical, or would he also use sociological methods? That is, identify the relevant social interests at stake, then base the decision on which result provides the greatest social benefit with the least sacrifice of other interests?
Would he accept or reject the idea that a judicial decision is an intersection of social forces that define its meaning? Could he be expected to be a realist in the mold of Justices Oliver Wendell Holmes and Louis Brandeis? In other words, would he be pragmatic and primarily concerned about the social effect of court decisions?
Cardozo believed all methods of analysis should be considered to be useful tools and not absolute truths, and that all methods should be recognized for their strengths and weaknesses. Does Alito agree? If so, what kinds of cases should receive different methods of analysis?
In the judgment of the nominee, does our social-compact theory of government limit the power of government? Does it limit government intrusion into areas of individual freedom to situations in which government can demonstrate a social need to do so? Or, conversely, may government enact legislation whenever it chooses, so long as it does not overtly violate the Constitution?
Does Alito believe the court should limit itself to furthering the “original intent” of the drafters of the Constitution? Or is original intent tempered by the “living Constitution” doctrine of Chief Justice John Marshall, Justice Holmes and others, and to be adapted to current conditions not experienced nor foreseen by the founders?
If he believes in the latter, what is the court’s role? If he subscribes to the intentionist approach, what standards would he apply to determine the original intent? And, what standards would he apply to decide there was no original intent, but a compromise with issues left to be addressed later?
What is Alito’s reaction to the proposition that it is also judicial activism for the court to subtract something from the Constitution, or to be stingy in recognizing and applying it? To do so is no different from being activist by adding to the Constitution through interpretation; it merely cuts in a different direction.
What about respect for established precedents and the court’s opportunity to overrule earlier cases that have become American law? Of course, overruling a prior court decision can be rationalized on the later belief of a majority of the justices that a case was decided wrongly. Would Alito see it as arrogance for the justices to proclaim that their values and perspectives are better than those of their predecessors, and therefore must prevail?
It is vital that the nominee engage in a meaningful dialogue on such questions that probe his perspectives on judicial philosophy.
John H. Reese is associate dean and professor at Sturm College of Law, University of Denver
