Figuring Out Alito

By John Nichols, TheNation.com. Posted January 10, 2006.

When the Senate Judiciary Committee begins questioning Supreme Court nominee Samuel Alito this week, Americans will again be reminded of the limitations of the confirmation process for presidential picks to serve on the federal bench.

Alito will lie to the committee, intentionally and repeatedly.

In keeping with the standard set by all recent high court nominees, he will treat the hearings, and by extension the American people, who the confirmation process is intended to serve, with utter and complete contempt.

Alito will be asked direct questions, and he will claim that he cannot answer them for two reasons.

First, in order to avoid broad questions about his legal philosophy, he will claim that he is not able to comment on cases that might come before the court. This is a deliberate dodge, designed not to protect Alito's ability to judge impartially but to avoid revealing whether his ideas are within the mainstream of constitutional interpretation and judicial responsibility.

Second, despite the fact that his proponents would have the Senate and the American people believe that he is a brilliant man with broad executive branch and judicial experience, Alito will claim that he has not seriously considered fundamental questions of law, politics and public policy. This, too, is a deliberate dodge, designed to prevent an examination of how he approaches issues.

If the recent past offers any indication, Alito's refusal to cooperate with the committee will be extensive. When Chief Justice John Roberts faced the committee during his confirmation hearings last fall, he refused to answer more than 60 questions in a single day.

As members of the Judiciary Committee approach what should be their most solemn duty -- since they are being called upon to accept or reject a nominee who could serve on the high court long after they have left politics -- senators of both parties should be looking for a way to crack the facade of deceit and disrespect that Alito will erect.

Here's one suggestion for how to do that:

Ask the nominee how he would have ruled in the case of Bush v. Gore. Does he agree that the court was right to intervene, for the first time in history, to stop the counting of the ballots that could have determined the result of a presidential contest? Or does he believe, as University of Virginia professor and Supreme Court scholar A.E. Howard has suggested, "Prudence would call for letting the political process run its course"?

Does Alito believe it is possible to reconcile the high court's intervention in an electoral battle with a strict constructionist reading of the Constitution that says Congress, not the court, is charged with settling disputed contests at the federal level?

Does he believe that Justice Antonin Scalia, whose sons were associated with firms that represented George W. Bush's campaign, and Justice Clarence Thomas, whose wife was working with Bush's transition team, should have recused themselves from the deliberations? Does he worry that the decision to intervene in the case might have damaged the court's reputation as an independent body that stands apart from the partisan politics associated with the executive branch?

Of course, Alito will try to avoid such questions, just as Roberts did when Sen. Herb Kohl, D.-Wis., made a tepid attempt to raise the issue last year. But Alito has no excuse for refusing to answer.

The case of Bush v. Gore will never come before the court again. And the court itself has ruled that the decision should not be interpreted as setting a precedent. Thus, it is one of the few court decisions that is entirely, and appropriately, open to discussion by a nominee.

And what if Alito claims he hasn't taken the time to consider the case or its issues?

Considering the fact that the case involved the question of who would be the most powerful person on the planet, if Alito claims he wasn't paying attention, there really would not be any question that he is too disengaged to be confirmed to so substantial a position.

John Nichols is The Nation's Washington correspondent.

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