JURIST Special Guest Columnist Wendy J. Keefer, former senior counsel and chief of staff in the US Department of Justice Office of Legal Policy and now with Bancroft Associates in Washington DC, says that on the second day of the Supreme Court confirmation hearings for Judge Samuel Alito senators spent too much time trying to discover his opinions on policy rather than exploring his thoughts on judicial process…

Today was America’s first clear look at Samuel Alito. Where yesterday’s opening session of the confirmation proceedings was all about the Senators themselves and their thoughts on the state of the law, today we caught a glimpse into Judge Alito’s legal thinking. But through no fault of the nominee, we got only a glimpse.

As predicted, too many questions went to the nominee’s opinions about outcomes rather than process. Where judges ought to be concerned merely with an objective method or process for applying the law to cases regardless of outcome, the hearings exposed a disturbing outcome determinative view of the law. Where the hearings seek to commit the nominee to certain positions, unattached to the facts of any real dispute, they are sure to achieve nothing but risk the independence of the nominee and ultimately the judiciary as a whole.

No more evident was this fact than in the focus placed on Judge Alito’s prior 1990 statement to the Committee, a statement made in answer to written questions relating to his confirmation to the Third Circuit Court of Appeals, regarding interests he then held that might require possible future recusal from cases. In responding to those questions, Judge Alito indicated that his holding of mutual funds with Vanguard might require recusal. Then in 2002, some 12 years later, a case involving Vanguard did arise in the Third Circuit, but the outcome was one in which Judge Alito had no financial interest. At that time, Judge Alito did not recuse himself from the decision.

Putting aside whether the decision by Judge Alito not to recuse himself was correct and ethical — as I believe it was — today’s inquiry by several members of the Judiciary Committee sets a dangerous precedent. For it is not the actual recusal decision that seemed to be problematic for these Senators, rather it was that Judge Alito had, as one Senator explained in his opening remarks on Monday, “broken his word” to the Committee. Today Senators again focused on this issue, at least in one instance insinuating some dishonesty on the part of the nominee who “under oath” in 1990 indicated that at that time he had interests in Vanguard that might require recusal. It is important to note that the questionnaire’s inclusion about a nominee’s interests that might require recusal is in large part simply a way for the President and the Senate to ensure that a nominee’s interests are not so widely spread that recusal will be required from a large number of cases. It is not a test for future performance.

And it is not just questions of ethics or procedure on which some members of the Senate sought some sort of promised future performance. Though often prefacing questions with the claim that the Senator had no interest in Judge Alito’s personal opinions on abortion, the questions asked routinely did demand Judge Alito’s opinion on just that topic — though admittedly disguised in most instances in the legalese of constitutional theory. Similar questions were posed in connection with a Title VII employment discrimination case that came before Judge Alito in the Third Circuit. There too it was not the process of reaching the decision but the outcome that drew the attention of the Senators.

Indeed, several times during today’s proceedings viewers were treated to statistics on the number of times Judge Alito ruled against individuals and for the government or against employees asserting discrimination and for their employers. But these statistics are meaningless without reference to the facts that gave rise to a given case. None of us, as litigants, would want courts that decided cases based on whether the court needed a win for one type of litigant over another to better even out its numbers. Nor should litigants desire judges who seek predetermined outcomes without reference to the unique facts of each case.

From abortion, to employment discrimination, to the powers of the Executive Branch, today’s hearings were little more than an attempt by the Committee to tie Judge Alito to certain predetermined positions. Senators engaged in such a strategy regardless of the implications that strategy may have on his future ability to appear impartial should those issues come before him, whether he is confirmed as a Supreme Court Justice or remains on the Third Circuit.

For Alito’s part, as can be expected in an adversary position, he was at times noticeably flustered and he lacks the polished presentation of a John Roberts, now Chief Justice Roberts, but the answers he provided should comfort those watching and listening. True to his opening statement that he had no agenda as a judge, he eloquently explained today that our system of separated powers provides a clear role for judges and that role does not include lawmaking. Judges merely interpret the law. And the law comes from the legislature; it is the legislature that is the policy maker, not the court.

For those Senators who admittedly believe that judges have a role in making law and not merely applying it, questions on the outcome of future cases is understandable. And though I disagree on the position of those Senators, they are truthful about the purpose of their questioning. But let us not permit the rest to pretend they have no interest in the nominee’s personal views or that they are not attempting to demand the nominee’s commitment to a certain policy agenda. To accept these attempts is to give up the ideal of an independent judiciary.

This process is, to be sure, a political “kabuki dance” or “subtle minuet,” as described by the Committee members themselves, but the significance of the dance will impact a generation.

Wendy J. Keefer is a lawyer with Bancroft Associates in Washington DC. She previously served as Chief of Staff to the Assistant Attorney General in the Office of Legal Policy at the U.S. Department of Justice, where she collaborated with the White House on judicial nominations.
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