JURIST Guest Columnist Bryan Horrigan of Macquarie University Faculty of Law in Sydney, Australia, says that the upcoming confirmation hearings for Judge Samuel Alito are a trial not just of the nominee, but of the uniquely-American system of public judicial confirmations of high court judges…

As Judge Samuel Alito's confirmation hearing before the US Senate Judiciary Committee begins on January 9, more than his place on the US Supreme Court is up for grabs. The contemporary state of the US Supreme Court selection process is also on trial.

How the USA selects its national judges neither matches exactly what happens in other common law countries like Australia, Canada, and the UK, nor necessarily represents international best practice, even if none of the other jurisdictions has a strangle-hold on that. The ways in which Alito, Republican and Democrat senators, and pro-Alito and anti-Alito lobby groups conduct themselves over coming weeks will either reinforce or dispel international and perhaps also some domestic skepticism about the effectiveness of public judicial confirmation hearings in their present form.

The US System of Supreme Court Appointments and Comparisons Elsewhere

The US Constitution involves the other two branches of federal government in selecting Supreme Court judges by providing for presidential nomination and appointment of them ‘with the advice and consent of the Senate’. This provides an institutional check and balance for judicial selections that is absent from constitutional arrangements in other countries, including a parliamentary democracy like Australia.

One common weakness of the procedure in the USA, Australia, and elsewhere is that nomination of someone to fill a vacancy on each country’s highest court happens with a minimum of public transparency and non-executive input. In the absence of bipartisan agreement on transparent criteria for assessing judicial merit, and internal checks and balances in the nomination process itself, scant non-partisan means are available to satisfy the people as the ultimate source of democratic authority that the best candidate is being nominated. For example, extensive previous judicial experience was publicly relied upon by President George W. Bush as a strong factor in favour of Alito’s nomination. Yet, only a month earlier, being untainted by previous judicial experience was publicly relied upon by Bush as a strong advantage in nominating White House Counsel, Harriet Miers.

Relying on media scrutiny, expert lawyerly rankings, and Senate Judiciary Committee questioning to test the suitability of judicial candidates for the Supreme Court is closing the door after the horse has bolted if the person nominated is not demonstrably the best candidate according to publicly known and assessable criteria of judicial merit. Even allowing for the wisdom of hindsight, will history’s judgment be that Miers was clearly ahead of Alito and all other candidates as the demonstrably best nominee, in terms of strict legal merit, at the time of her nomination?

Given the impact of judicial interpretation of the US Bill of Rights on American life, the judicial philosophy of a candidate is widely acknowledged politically and publicly as a relevant factor affecting their nomination and appointment. This element is present but not always with the same force in political debate in a country like Australia, with a common law heritage but without a national bill of rights. The Australian system leaves everything on national judicial selection in the hands of the prime minister and cabinet of the day. Australia has no constitutional requirement for the executive government to consult with anyone or to secure any legislative approval for whoever the executive government wants to appoint to Australia’s equivalent of the US Supreme Court, the Australian High Court. Nobody from outside the executive government or those privileged enough to be consulted by it knows who is being actively considered for appointment to the High Court, for example, until the official appointment is announced.

This results in the unsatisfactory position of the Australian public not really knowing anything until after the event (if ever) about who has been consulted and how, who has been considered and how, what criteria for merit have been used and applied, whether any candidate has been interviewed and what they were asked, and how the ultimate appointee views the task of judging under the Australian Constitution. After Justice Susan Crennan’s appointment to Australia’s High Court last year, for example, even retired High Court judges publicly criticized the Australian Government for the non-transparency of the nominating process, as well as the lack of information publicly available about that process and the basis of deciding judicial merit. As of now, both the USA and Australia have only ever appointed two women each to their highest national court.

While Australia in the past has appointed former federal attorneys-general on both sides of politics to its High Court, a non-elected lawyer working inside the current executive government, like withdrawn Supreme Court nominee, Harriet Miers, would be an unlikely judicial appointee under the Australian system. But that is due less to any inherent institutional safeguards or publicly transparent judicial selection criteria and more to the predominate practice in Australia of appointing either existing judges or else barristers with regular practical experience arguing for governments or others in constitutional matters before the High Court.

Other common law countries have recently introduced different measures for democratizing the judicial selection process, including greater non-executive input into the judicial selection process in Canada. All of this is occurring amidst modern transnational debates about the desirability of establishing independent judicial selection commissions, such as the recent innovation of the independent Judicial Appointments Commission in the UK. Where final constitutional responsibility for judicial appointment rests with the executive government, legislative and public input mechanisms as well as independent judicial appointment commissions can complement and inform that selection process.

The political and legal cultures in parliamentary democracies like the UK and Australia have one thing in common on judicial selection processes. They remain resistant to the kind of public and media scrutiny and direct legislative questioning of nominees that is taken for granted under the US system for judicial appointments to the Supreme Court. This public process can lead to the political evisceration of nominees in Senate Judiciary Committee hearings, as it did most recently and famously in the Robert Bork and Clarence Thomas confirmation hearings.

What the Senate Judiciary Committee Should Ask Judge Alito

How should Judge Alito be questioned in light of this? As with past nominees, the written questionnaire answered by Alito queries him about judicial activism. This topic is a bee in the bonnet of many senators, who believe that the modern Supreme Court is insufficiently respectful of Congress and too quick to invalidate congressional exercises of power. Yet there are more telling questions to put to judicial nominees, especially since any good law student could answer that question by telling the examiner what the student thought they wanted to hear, without really revealing anything significant about their real views.

Cherry-picking the judgments in Alito’s judicial record is unlikel
y to be conclusive. After such a long period holding judicial office, Alito’s record includes decisions whose outcomes favour those in positions of political and corporate power as well as decisions whose outcomes favour those vulnerable to the exercise of such power. At the same time, his judicial decisions and earlier work-related material as a government lawyer raise legitimate questions about what his personal and judicial philosophy might mean for the Supreme Court’s future work on controversial civil rights matters like abortion, euthanasia, same-sex marriage, capital punishment, immigration, and labour and equality rights, as well as its equally important work on institutional responsibilities concerning the separation of church and state, constraints on executive power, and legislative environmental protection.

The opponents of Judge Alito’s nomination fear that, as more is revealed about his views in released documents and Senate questioning, it will become apparent that Judge Alito is neither within the mainstream nor a moderate conservative, but rather ‘a hard-line right-winger, and not just on abortion rights’, as one liberal commentator put it in December’s American Prospect. Despite Alito receiving the American Bar Association’s highest rating for Supreme Court nominees in the week preceding his confirmation hearing, public analyses of his judicial record by court-watchers such as the Washington Post portray him as a judge who is more deferential than some to governmental authority, and more restrictive than some in his view of individual rights in contentious areas of employee discrimination, immigration, and criminal justice, including the death penalty.

Even allowing incumbent Presidents the political luxury of a margin of appreciation in nominating judges who they hope are broadly in line with their political and legal world-view, provided that they otherwise fit broadly within the mainstream, no longer defuses all objections to nominees who might hold the balance of judicial power on a divided bench. One obvious reason for this is because the mainstream is in flux. Professor Cass Sunstein describes the paradigm shift in judicial outlook in the last few decades in this way: ‘The center has become the left. The right is now the center. The left no longer exists.’ If the mainstream truly has shifted even momentarily to the right, those on the left or centre-left of politics are unlikely to be satisfied by calls to respect and confirm candidates within the right-leaning mainstream, especially if that puts currently recognized constitutional rights in jeopardy.

The conventional wisdom about the confirmation hearing for Chief Justice John Roberts is that his performance made him the dream nominee and sets the modern benchmark for those nominees who follow him. While his performance was politically astute and his mastery of both the law and Senate questioning was evident, he revealed little of any great significance about his underlying judicial approach or his real view of the current state of constitutional jurisprudence, with limited exceptions. Those subjecting Alito to the famous ‘murder boards’ that help nominees to practice for confirmation hearings have no doubt absorbed the lessons of how Roberts handled some lines of questioning.

However, it would be a mistake to think that giving Roberts-like answers to some controversial lines of questioning will work automatically for Alito too. The prevailing political circumstances and judicial stakes are different, given the Bush administration’s current political troubles and the generational significance of what a swing seat on the Supreme Court represents. Moreover, in hindsight Roberts got off lightly with some of his answers.

Roberts and perhaps earlier nominees were allowed too often to get away with non-answers to important questions going to their judicial approach. This can happen without sustained follow-up Senate questioning and the pressure of legitimate public, political, and legal expectations to reveal more about a nominee’s judicial thinking. This culture of expectations needs to change. It might help if Professor Ronald Dworkin’s penetrating dissection of the Roberts ‘Q & A’ sessions before the Judiciary Committee in the 20 October 2005 edition of New York Review of Books was on the reading list for all Committee members and those assisting them in preparing questions for Alito.

Roberts was allowed to rest on two basic points that, as Dworkin describes, warranted further prodding by Senate Judiciary Committee members. First, Roberts’ public admission that the Supreme Court’s abortion decision in Roe v Wade is ‘settled as a precedent of the court’, ‘entitled to respect under principles of stare decisis’ just ‘like any other precedent of the court’, and subject to future analysis on the terms outlined in the later abortion decision in Planned Parenthood v Casey revealed nothing of real significance about his starting approach to such questions or his overall view of the Constitution and the Bill of Rights. As Dworkin pithily concludes about these and other answers going to his judicial philosophy, senators ‘should have pressed him on the character of the more general constitutional philosophy he would employ finally to decide those issues when they arise’, and they ‘should not have accepted his reiterated banalities about being guided by the law, or deferring to the rule of law, or taking due account of precedent, or deciding legal issues in a practical, pragmatic way, or allowing the facts their “proper role”‘.

Secondly, Roberts resorted often to the formulaic response that he could not give specific answers on matters that could come before the Supreme Court. It is not justifiable for Roberts, Alito, or anyone else to deflect questions that go to a nominee’s overall judicial philosophy and general judicial views on the Bill of Rights, and what the features of their own judicial mindset mean for how a candidate starts to think about particular Bill of Rights questions, simply on the basis that one of these particular questions might come before the Court. Such answers are not truly responsive to what is really being asked. Reasonable politicians and citizens alike understand that what is being asked and the response legitimately being sought are far from an advance commitment in the abstract to deciding a particular case with particular features in a particular way. Roberts, Alito, and other nominees should be called on this, where they seek refuge in such a tactic to avoid revealing anything of real but perhaps controversial significance about their judicial thinking, for fear of spoiling their chances of confirmation. The public interests truly at stake in public confirmation hearings are more important than any nominee’s personal desire to avoid revealing what everyone really needs to know about what they really think.

Deeper questioning about the judicial philosophy of anyone nominated to take Sandra Day O’Connor’s swing position on the Supreme Court is the necessary price to pay for the benefit of being appointed to an official position where someone’s approach to judging could affect people’s rights and liberties for better or worse for decades to come. Senators must be more creative, persistent, and penetrating in their questions, and avoid framing questions in ways that afford Alito the easy option of saying that he cannot advance views on specific issues in cases that might come before him. Neither Democrat nor Republican judicial nominees should be allowed to rest so easily on that point anymore in deflecting questions about the make-up of their approach to judging or their assessment of the current constitutional landscape. So, if Alito tries to stall any senator’s question with a Roberts-like deflection of the ‘I cannot comment on specific issues that might come before the Court’ kind, the senator should halt him in his tracks and counter-respond that Alito is not being
asked to commit himself to a full and conclusive opinion on specific issues, but rather is being asked for a meaningful account of the various elements that inform how he would start approaching an answer to such important questions, especially in terms of how he sees the constitutional issues in play and how he would go about addressing them. A justified reluctance to avoid committing to the end of the story does not excuse a nominee from explaining how the story begins and how approaching the end should be framed.

Alito needs to be questioned systematically and in detail about what kind of document he thinks the Constitution is, how he would approach interpreting it, what kinds of balances he thinks it strikes between governmental power and individual freedom, what concerns he might have about how it has been interpreted to date (given his criticisms of aspects of the Supreme Court’s jurisprudence in his work as a government lawyer, and his capacity to change that from the bench), and other aspects of what it means to be a judge engaged in legal interpretation of a constitutional framework in a liberal democracy governed by the rule of law. Given their contemporary importance, he should also be questioned on the constitutional reach of both executive power and the zone of privacy for personal moral choices. The latter includes but is not limited to abortion. Questioning in this area can be done without offending calls on all sides of politics not to make judicial views on abortion the singular litmus test for appointment to the Supreme Court. All of this can be done in ways that chart a course through the twin reefs of avoiding superficial and unresponsive answers to senators’ questions, on one hand, and avoiding inappropriate comment on specific upcoming cases, on the other.

Alito is also arguably in a worse position than Roberts in having so clearly aligned some of his work as a government lawyer with his personal views on the law, in matters of some controversy for any judicial nominee. In his 1985 application for advancement within the Reagan administration, Alito stated that ‘I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this Administration’. He goes on to profess strong beliefs ‘in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values’, as well as strong disagreement ‘with the usurpation by the judiciary of decisionmaking authority that should be exercised by the branches of government responsible to the electorate’.

More controversially, he expresses great personal pride and satisfaction in being able through his work for the Reagan administration ‘to help to advance legal positions in which I personally believe very strongly’, especially ‘my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion’. In these ways, Alito identifies his core legally relevant beliefs. In addition, he draws the connection between those beliefs and his legal work. The problem with now trying to compartmentalize these expressed views on abortion as merely personal views, and to distinguish them from Alito’s obligation as a Supreme Court judge to decide according to the law, is that his own words associate him personally with the idea that the Constitution does not really protect a women’s freedom to terminate a pregnancy, at least on one reading. He thereby puts his own specific beliefs about law and government on the record and hence in issue in his confirmation, and can be legitimately questioned more closely on what he really means by some of these beliefs, and how they might impact upon his judging if confirmed. Senators are entitled to ask him, for example, if he still holds to those beliefs and, if he says that they are personal rather than constitutional beliefs, they can ask how he reliably keeps his personal beliefs out of the way of his constitutional choices.

There are other meaningful questions that senators can ask to probe how Alito would approach contributing to the Supreme Court’s abortion jurisprudence, for example, beyond simply asking him absolute and hence justifiably deflectable questions like ‘Does the Constitution contain a privacy right to an abortion?’, ‘Was Roe v Wade correctly decided?’, and ‘Will you vote as a Supreme Court judge to overturn or restrict Roe v Wade?’. They could ask him, for example, to explain what he sees as the legal boundaries and relevant factors in any future revisiting or application of Roe v Wade and, if his response amounts to little more than acknowledging that Planned Parenthood v Casey lays down the legal markers for how Roe v Wade is treated from here, they should ask him to explain more about what that really means, especially since his judgment was a dissenting view at lower levels in the Casey case.

Both Alito and the Senate Judiciary Committee members can either reinforce the bad habits of Senate confirmation hearings or else play more statesmanlike roles in transforming and elevating what takes place to a new level of respectful but meaningful dialogue. If Alito rises to this challenge, his Senate interrogators should respond in kind, cut him some slack, and not play automatic ‘gotcha!’ with any off the cuff way in which he expresses a view. Statesmanship is desirable but, even if Alito is neither encouraged nor allowed to rise to this challenge, the same outcome can be achieved another way. What judicial nominees and their minders presently think are politically safe non-answers to senators’ legitimate questions about their judicial mindsets must come to be seen as politically unsafe answers for judicial nominees of all political colours, on the basis that a nominee who reveals too little of what senators and the people really need to know about them as a judge runs the risk of disqualifying themselves from being confirmable. This requires bipartisan acknowledgement and enforcement of the higher common interest in having judicial nominees account to the people and their representatives meaningfully about their views on the Constitution and the matters to be decided under it. Telling the people’s elected representatives little that is meaningful about a nominee’s real judicial philosophy shortchanges the American people in the public confirmation process. Moreover, as Dworkin argues about Roberts in terms equally applicable to Alito, ‘according to any plausible theory of democracy the public has a right to know his views on matters affecting their fundamental rights in some detail before their representatives award him lifetime power over those rights’.

Looking ahead to the higher judicial stakes in appointing a replacement for Sandra Day O’Connor as the pivotal swing vote on the bench, Dworkin’s injunction to the Judiciary Committee is that ‘(i)t should demand to know the new nominee’s constitutional philosophy’ and ‘(i)f he or she refuses to disclose it, or claims that it is only to respect the rule of law and adds nothing more helpful about what that means, then its constitutional duty is to advise the Senate to reject that nominee as either disingenuous or incompetent’. Whatever you might think of Dworkin’s own brand of legal philosophy, his analysis here exposes cracks in the public questioning of judicial candidates for the Supreme Court that need closing, to justify the exposure of nominees to public questioning in the first place, and to counter-balance the undesirable impact of the more partisan aspects of this process.

As Dworkin also notes, Roberts departed from his preferred strategy of not giving substantive answers to questions about his overall judicial approach when he judged it safe to do so, most notably in denouncing judicial reference to foreig
n judicial decisions as authorities for interpreting the US Constitution. Alito can expect Senate questions about that hot topic too. Given the sharply divided views on the current Supreme Court bench about this controversy, he should be pressed beyond the obvious response that foreign and international judicial decisions are not products of the US legal system and hence have no binding or even authoritative precedential effect domestically. The controversy goes deeper than this.

If the Senate Judiciary Committee subjects Alito legitimately to the kind of skilful deeper probing that Roberts managed to deflect, and does so without also transforming his confirmation hearing into a partisan witch-hunt, personal crucifixion, or media feeding frenzy, the US system of judicial nomination and appointment will be well served. Its internationally uncommon reliance on public confirmation hearings for judicial nominees would then be on the way towards rehabilitation as a pre-eminent form of testing the suitability of candidates for a judicial position capable of affecting American lives as much as any elected president can.

Professor Bryan Horrigan completed a doctorate in law at Oxford University as a Rhodes Scholar. He is currently a Visiting Scholar at the Wharton Business School in Philadelphia and the Associate Dean for Research at Macquarie University’s Division of Law in Sydney. He publishes and holds research grants in areas concerning comparative judicial-decision-making and internationalization of law, as well as corporate governance and responsibility.
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