I've been wanting to write this diary for some time.
Many Kossacks and Democratic officials have commented on Judge Alito's legal views on a checklist of issues. These Kossacks and Democratic officials have focused on Judge Alito's views on issues ranging from abortion to presidential power to discrimination to voting rights.
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But the debate about Judge Alito's fitness to become the 111th Supreme Court justice should be much broader than whether the nominee holds mainstream views or even plausible views on a checklist of issues. It's not about even the broader issues such as privacy in general, allowing Congress to pass laws protecting the environment, supporting the little guy against corporations, etc. No, the debate over Judge Alito's fitness to be an associate Supreme Court Justice should be much, much broader than even that.
The debate over Judge Alito's fitness should be about whether a Justice Alito would restrict freedom and the protections of human dignity and human liberty or whether a Justice Alito would expand freedom and the protections of human dignity and human liberty. Will Judge Alito have the courage to do the unpopular to expand justice? This is how history ultimately judges any Supreme Court justice and why history has and will not be kind to William Rehnquist, whose tenure is marked by restricting freedom, and pays testimony to Earl Warren, Thurgood Marshall, and William Brennan, Jr. -- all who expanded freedom and the protections of human dignity and human liberty.
Even more important, my gravest reservation of Judge Alito is the same I have of Chief Justice Roberts -- his values and his sense of justice. Judge Alito certainly has a great sense of the law, but what about a sense of justice? Judge Alito's approach to the law is very mechanical, dispassionate, precise, and plausible, but does it serve the interests of justice? As UC Berkeley Professor Goodwin Lieu pointed out in a Time magazine article,
[Judge] Alito can be seen as overly focused on details and technicalities while missing the fundamental values embedded in such matters as job discrimination and jury selection. "He approaches law in a formalistic, mechanical way abstracted from human experience," says Goodwin Liu, a professor of constitutional law at the University of California, Berkeley.
Almost every time an individual's interest is in conflict with a government's authority (particularly on the rights of the accused and discrimination cases), Judge Alito defers to the government, and places the burden of proof on the individual to show he or she is worthy of protection rather than place the burden on the government to demonstrate a compelling interest to make a regulation. This is certainly a plausible approach, but does it do justice? Does this approach provide relief or even protect those who have a moral claim on society? Would this approach leave injustices unrectified? Does Judge Alito even care who is crushed by his intellectual theories? Why should those who need relief or mere protection believe they have a fighting chance in Judge Alito's court? Where is Judge Alito's passion to do justice?
Senators must inquire about Judge Alito's values at the hearings. Why does Judge Alito want to be a Supreme Court Justice? Hopefully, Judge Alito will give a better response than Robert Bork, who thought serving on the Supreme Court would be an "intellectual feast." How does Judge Alito want to be remembered if confirmed as a Supreme Court Justice? Hopefully, he'll say that he did justice. Was Judge Alito bothered by some of his colleagues opinions saying that some of them would leave manifest injustices? These are questions that Senators must ask Judge Alito.