Legal Technicalities: Weighing the Alito Nomination

JURIST Guest Columnist David Kairys of Temple University School of Law says that senators weighing the nomination of Judge Samuel Alito to the US Supreme Court should be wary of endorsing his commitment to legal technicalities over core constitutional values...



Judge Samuel Alito is smart, fair, collegial, and independent. He's qualified, and he calls 'em how he sees 'em. But that's the problem - how he sees 'em.

The Constitution consists of short, general phrases - freedom of speech, due process, commerce among the states - whose meaning at particular times and in particular circumstances is left to the justices of the Supreme Court. The justices have broad discretion because the meaning of these phrases is open to a wide range of interpretations.

The discretion of judges, particularly Supreme Court justices, is not a deviation from the system - it is the system. Supporters of the Alito nomination can't seem to make up their minds if they like him because he doesn't apply values or because he applies values they like. But this (and every) Supreme Court nomination is about values, not the absence of values.

It's no accident that the framers of the Constitution placed the confirmation process in the hands of a political branch of government, the Senate. They could have sent it to a credentials committee if the focus were simply on the kind of qualifications the American Bar Association considers in its recommendations.

The senators should think long and hard and go with the president if it's a close call. But their mandate is to approve or disapprove a nomination based on what it means for the Supreme Court and the nation.

Discussions of legal issues like executive and legislative power can seem abstract and unrelated to the lives of most Americans. And the arcane discussions at the confirmation hearings can seem baffling, particularly since Alito had such intricate, technical — and long — explanations. But it all matters.
Alito's decisions as a judge, like his testimony, usually don't repudiate established laws or principles or make major pronouncements. Rather, his method is the tedious, often trance-inducing interpretations and applications displayed at his confirmation hearings.

Like the rest of us, he's for a clean environment and corporate responsibility, but he interprets environmental laws so it's near impossible to make out a case against a polluter, and anti-trust laws so it's near impossible to make out a case of price fixing.

He tells us about the importance of privacy and of limits on the government's power to intrude on individuals, which are the essence of liberty. But he accepts farfetched rationales to justify most any intrusion — even the unauthorized strip search of a 10-year-old girl and the unauthorized holding of a farmer at gunpoint and ransacking of his home.

He's for balance among the three branches government, but he's taken every opportunity to strip Congress of the basic power to protect and serve the public. He voted, based on lack of congressional power, to invalidate the decades-old ban on machine guns in spite of numerous decisions to the contrary, and to invalidate a provision on sick leave benefits approved even by Chief Justice Rehnquist.

He's for religious freedom, but used an obvious sham to get around decisions on the separation of church and state.

His judicial opinions don't repudiate anti-discrimination laws, but they advocate evidentiary requirements and legal rules that would make it near impossible to make out a case of race or sex discrimination.

In many such decisions, he was a lone dissenter, and majorities on his own court, including then-judge and now Secretary of Homeland Security Michael Chertoff, often expressed unusual displeasure with his dubious manipulations of rules and evidence.

The far rightwing conservatives who for decades railed on about liberal legal technicalities — usually referring to the liberal decisions of the 1960s making the Bill of Rights meaningful — have brought us the ultimate conservative technocrat.

Alito's legalistic, super-technical methods can — and will — justify anything. And there's no mistaking the striking themes and patterns throughout Alito's decisions as a judge and memos and applications as a government lawyer.

He has a deep allegiance to government, to corporations, and to the wealthy and elite — so deep that there is no way to know what, if any, limits he might find acceptable.

Alito's writings yearn for undiluted executive power and immunity of executive officials from all legal claims — immunity from the rule of law. At the confirmation hearings, he wouldn't accept any concrete limits on presidential power, even in general terms. Alito relied on the apple-pie platitude "the president must follow the law." That doesn't mean much if one is willing, like Alito, to accept farfetched, technical manipulations of the law to make anything the president does seem legal.

But he's very willing — eager — to limit the powers of Congress when they are used to protect the safety, health, jobs, environment or wellbeing of Americans throughout the country.

Executive and legislative power matter. The Bush administration candidly claims the power to torture and to eavesdrop on Americans without authorization. The latest of these unprecedented claims is perhaps the boldest — Bush asserts the power to sign a law passed by Congress and then to decide whether or what parts of it to abide by.

Alito is a Bush kind of judge on a range of issues, including, of course, abortion. But his acceptance of sweeping executive power and of legal manipulations and technicalities to rationalize it seems of primary concern to the administration, and should be to the rest of us. This is an administration that claimed it doesn't allow torture by re-defining torture in a secret memo so it didn't include what international law and most people regard as torture.

Alito believes in freedom, but it's the freedom of the most powerful and wealthiest among us and of the government to do as they please, with little or no concern for the effect on most Americans or the nation as a whole.

Even with a strong Republican majority in control of Congress, they and Alito realize that they can't say what they really want. It would be repulsive to Americans across the political spectrum, as it was when Robert Bork's nomination was defeated in the 1980s. They are relying on the tedious rationalizations and legal technicalities, and the perception of Alito as a smart and decent, if overly lawyerly, fellow, to blunt the public's understanding of what's in store for American freedom, democracy and equality should this nomination succeed.


David Kairys, a law professor at Temple University who has litigated leading civil rights cases, is the editor of The Politics of Law (Basic Books 1998). He's writing a book about civil rights lawyering in the 1960s and beyond.
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