Fred Hiatt's Washington Post Editorial Board, in a move that could surprise no one who is familiar with its Bush loving ways, urged the confirmation of Judge Samuel Alito the other day. What was particularly funny and indicative of just how in the tank Hiatt and Co. are was their straight from the GOP talking points invocation of
Alito's "judicial modesty":
Humility is called for when predicting how a Supreme Court nominee will vote on key issues, or even what those issues will be, given how people and issues evolve. But it's fair to guess that Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence. That's not all bad. The Supreme Court sports a great range of ideological diversity but less disagreement about the scope of proper judicial power. The institutional self-discipline and modesty that both Judge Alito and Chief Justice Roberts profess could do the court good if taken seriously and applied apolitically.
One can only laugh at this. Surely Hiatt and Co. do not believe this of Alito. Roberts has no record so you can plausibly believe anything you want about him. Not so Alito who has a record of judicial activism that is undeniable. I wrote a few weeks ago:
I adhere to the view that all judges (and lawyers) are Legal Realists at heart -- we can all, generally speaking, justify a legal point of view. My point is that we do so to justify our desired result. And Alito is no different. That is why the results he has advocated are important for more than examining potential policy results; they also help to reveal his judicial philosophy. I am going to examine two of his opinions - his dissents in United States v. Rybar (the machine gun case) and in Planned Parenthood v. Casey (the abortion case) to illustrate Alito's selective adherence to "precedent" to achieve the result he desired in both of those cases. In Rybar, he rationalizes that U.S. v Lopez dictates the result. In Casey, he ignores an on point Supreme Court precedent to achieve the result he wants. I will also posit what I believe these two decisions demonstrate regarding Alito's judicial philosophy.
Today Ruth Marcus, who is on the Hiatt and Co. team, writes a column that shreds the empty GOP talking points that Hiatt chose to publish:
For even the most responsible, well-intentioned judge, respectful of precedent and -- to use the adjective du jour -- modest in his conception of the judicial role, is called on to make, well, judgment calls, filling gaps in legislation or interpreting capacious constitutional phrases. The higher up the judicial ladder, the harder the cases -- and the more important the judge's underlying worldview, judicial philosophy and constitutional vision. There is, in short, a soul inside every judicial machine.
Justice Benjamin Cardozo, lecturing on the judicial role in 1921, described the inescapable, hidden forces tugging at judges -- "inherited instincts, traditional beliefs, acquired opinions" -- forces, that, he said, produced "an outlook on life, a conception of social needs . . . which, when reasons are nicely balanced, must determine where choice shall fall."
. . . In a provocative essay in the November 2005 Harvard Law Review, Richard Posner, a federal appeals court judge appointed by Ronald Reagan, makes an even more unvarnished version of that argument. Much of the high court's constitutional decision making, Posner asserts, is inherently political.
As much as a court "is supposed to be tethered to authoritative texts," Posner writes, the Supreme Court often finds itself facing issues to which "the constitutional text and history, and the pronouncements in past opinions, do not speak clearly." It is in that "broad open area where the conventional legal materials of decision run out, and the Justices, deprived of those crutches, have to make a discretionary call."
Marcus' closing paragraph is dripping with irony in light of the vacuous editorial published by Hiatt and Co.:
What has been so disappointing about the nominees' testimony is their unwillingness to engage in this discussion in an honest, meaningful way. What has been so maddening about the questioning is the senators' inability to penetrate their platitudes or robotic restatements of the law. Because thinking hard isn't enough -- for a silly old bear or a smart new justice.
Ms. Marcus may consider asking her Editorial Board colleagues how they discerned Alito's worthiness and um, "modesty" so easily before being so dismissive of the senators' "platitudes." It is rather maddening.