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 in keeping with their constitutional role of giving advice and consent, senators at the confirmation hearings for Judge Samuel Alito should resist the temptation to ask the President's nominee about his personal policy preferences, and should instead question him about the proper role of the judiciary and the proper method for evaluating cases…

On the eve of confirmation hearings on the nomination of Judge Samuel Alito to the United States Supreme Court, some Senators have said that they intend to question Judge Alito on, among other things, whether he would permit warrantless wiretapping like that recently revealed to be conducted by the NSA. I am disappointed, but not surprised.

The announced line of questioning would be inappropriate. But such questioning will not be the only inappropriate area of inquiry. A careful observer of the upcoming proceedings will likely be able to identify numerous other instances during which Senators attempt improperly to gain the nominee’s commitment to policy positions.

Unfortunately, the Senate all too often elevates its constitutional advice and consent role to one superior to the President’s constitutional authority to nominate the individual of his choice. Statements announcing the intent to question Judge Alito on the executive branch’s authority to conduct warrantless wiretaps prove that this confirmation proceeding will be no different. And it is the nominee who is caught in the middle. The nominee, for his own sake, is left to determine what questions must be answered in order to be confirmed, and which questions are properly refused because they may later call into question objectivity when deciding future court cases.

Confirmation hearings have become tests for the Senators to decide not whether a nominee is qualified for the position, but rather whether the Senator agrees with the personal policy positions of the nominee. This is not the advice and consent provided for in the Constitution. It is a usurpation of the President’s primary authority to nominate, and a threat to the independence of our judiciary. It is time to remind ourselves what the proper role of the Senate is in this process.

The Constitution places the appointment power primarily with the President. No doubt the Senate plays a role as well, but that role was intended to be limited. When the Senate reaches beyond its limited role in this process, the independence of the judiciary is sacrificed. Thus, it falls too often on the nominee himself, during the confirmation process, to salvage that independence.

Judicial independence is a crucial aspect of our legal system. In part, the lifetime tenure of judges creates this environment of independence. But when either of the other branches requires a nominee to commit to a certain position on a selected issue, an implicit promise or guarantee is created as to how the nominee will decide cases involving that issue, and the judge’s independence is compromised. Whether the nominee is asked his opinion on the legality of NSA surveillance activities or whether Roe v. Wade was properly decided, his answers will forever taint cases involving those issues that come before him. He is no longer an unbiased arbiter of those issues; he has already committed to one side or the other.

Unfortunately, the Senate has been unable to control its desire to know the personal opinions and beliefs of nominees. Those watching the confirmation hearings should pay careful attention to how often this desire enters this process and be aware of the dangers created. Listen to the types of questions asked and ask yourself if it is worth the consequences for us to continue to tolerate this interference with the independence of the judiciary.

Ask yourself whether you want judges for whom their personal opinions are an accepted factor in their judicial decision-making. Do we want judges driven by their personal opinions or driven by the law? It seems unlikely that many would readily admit it is desirable to have judges who decide cases on factors outside the law, arbitrary factors over which the people would have no control once the judge is appointed.

Instead, what is claimed to justify inquiry into personal beliefs is that all judges are unable to separate these beliefs from their judicial decisions. I refuse to believe this is the case. If it is, we are not truly a democracy governed by laws enacted by those elected by the people. Instead, we are a society governed by judges.

No doubt exists that there are judges who permit their personal opinions to impact their decisions, but so too are there judges who are driven by the dictates of the law and not by the outcome of a particular case or personal opinion. Cases can certainly be identified in which judges have overstepped their constitutional role as neutral arbiters and imposed their own policy choices above the choices of the people and their elected officials. But such judicial action is not desirable and the way to prevent it is not through an investigation of a nominee’s personal beliefs, but by evaluating his approach to the business of judging.

Questioning on specific issues is not necessary to evaluate a nominee. And the nominee should not be forced into compromising his own objectivity and independence by answering such questions. Instead, confirmation proceedings should focus on the process by which the nominee will make decisions, not the likely result of any decision.

We all want to know what to expect from a Justice Alito. But that knowledge is gained not through inquiry into issues, which absent the context of a particular case and its unique facts has little meaning, but through explanation of the nominee’s legal qualifications and judicial philosophy.

It is a shame that what we will likely see during the Alito proceedings will not be questions on the proper role of the judiciary or the proper method for evaluating cases. Instead, we will watch a constant game of cat and mouse in which Senators seek a commitment from Judge Alito on specific issues and seek to uncover his personal opinions about very controversial topics, while the nominee attempts politely to avoid answering those questions that if answered will merely serve to jeopardize his position as an unbiased judicial officer.

President Bush has made it clear that it is superior legal qualifications and a proper view on the role of the judiciary, not a commitment to particular policies, that guide his nomination decisions. The Senate should be similarly guided as they prepare for these confirmation hearings. And we, as observers and constituents, should ensure that our elected officials honor the constitutional balance of powers and do not taint the independence of our judiciary.

What kind of judge is Samuel Alito? His numerous years on the appellate courts prove that he is one driven by the law and not by his own policy preferences. That is good enough for me and it should be good enough for the Senate.

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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