Judging Alito as he would judge

No one but a candidate for president endures as much scrutiny as a Supreme Court nominee. This week, Samuel Alito takes his turn in being dissected by a Senate committee. Like the justice he may become, however, the senators need to judge him not on his political views but on his fidelity to the Constitution.

Injecting particular social causes or current politics into a Senate vote for or against a high court nominee is to assume a justice must and will always do the same. Therein lies the ruin of this republic's bedrock.

Political causes, no matter how moral or widely supported, must stop at the marble steps of the Supreme Court. For there the Constitution reigns like an invariable monarch with its own moral standing, and the justices must drop many human tendencies and apply common-sense meaning of constitutional text and established court opinions. It is an imperfect exercise done in hopes of a perfect outcome, creating a web of precedents that helps bring certainty to law. It relies on that rare virtue in which someone stops being an advocate in a political conflict and acts as an impartial judge, picking a side by applying the template of the Constitution and its principles.

In the months since Mr. Alito's nomination, both supporters and critics have combed his work as an appellate judge for 15 years (and before that as a legal advocate in the Reagan Justice Department) to predict if he will apply his personal, political causes in his high court decisions. Neither group is fully satisfied.

That's because many don't analyze his judicial opinions on whether he's been faithful to the law, legal precedents, or the Constitution, but whether he's delivered a result favorable to a particular cause, be it abortion, race, or gun rights. They tend to treat judicial reasoning as if it should be a party platform.

High court nominees of President Clinton faced similar scrutiny. Both left and right, frustrated at not always winning victories in the other two branches of government, have turned more to the courts in recent decades, and focused on putting "conservatives" or "liberals" on the bench. These hearings thus represent the latest battle in a relatively new intellectual war to erode centuries of mainstream legal jurisprudence (philosophy of law).

Much of law since the 18th century has been based on the idea that society runs best if judges don't act as legislators, but rather apply and follow the law - and not make it (or do whatever they think best). Critics of this "legal formalism" - or the conforming of new decisions to past decisions - say it doesn't advance rights fast enough or pays too much deference to executive or legislative authority. Alito, in this view, has "erred" by paying due deference to law and elected authority.

Both sides want to know, however, if that deference also includes his acceptance of major court decisions of the past century, especially ones about abortion and one man/one vote. Did some decisions "create" law but, by remaining on the books so long, become settled law, worthy of judicial respect? Or must a "bad" court decision be seen as "no law"?

Alito's answers to such questions will help define whether he, like any justice, would allow strict judicial reasoning rather than political views to extend civil rights, case by case.

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