Back when CJ Roberts was nominated, I wrote a
diary entry in which I opined that he might not be so bad. He is, after all, a nice guy, brilliant, by all accounts decent to others. I had met him, and he is absolutely charming in person.
I was slammed as being, among other things, a DLC tool, a dupe, and worst of all, a Republican. It hurt.
As the Roberts nomination progressed, I realized just how wrong I was. He may give his paper boy a nice tip, but he hates the Fourth Amendment. He may be kind and generous to his law clerks, but I have no doubt that he'll support the Administration's right to detain people indefinitely without charge.
How this relates to ScAlito after the break...
ScAlito, too, is apparently a nice guy. A friend of mine is supposed to clerk for him next year. As far as we know, ScAlito doesn't beat his wife or his kids, and he pays his taxes. Person after person has given him high praise as a colleague and a human being.
But it has finally sunk in - who cares? It doesn't matter whether we personally like a nominee or candidate. The only thing that matters is what that person will do in office.
I have a number of conservative friends, and we debate all the time. But they never come close to shaking my fundamental views, and I don't see them ever succeeding. All that happens is that my reasoning gets sharper, and I might make very small concessions at the edges.
So it isn't surprising to hear liberal former clerks or judicial colleagues describe Alito as "intellectually honest." He listens to their arguments attentitively and respectfully, but nothing essential changes. He might modify his justification for a given decision, but the result is the same.
We end up with two Alitos: the one that his colleagues describe, the thoughtful and modest jurist who treats everyone equally, that even liberals like; and the one who wrote decision after decision eviscerating the Fourth Amendment, pushing an almost dictatorial view of the state, etc. It is only the latter who will write Supreme Court decisions.
The problem that most of us have is separating the human being we like from the results we don't. How could a nice person deliberately do something that we find morally repugnant? It's easy to demonize hate-filled nutjobs - we're repelled by them anyway. But it is hard to imagine someone we genuinely like acting in a way that we would find reprehensible.
As I was writing this entry, Reginald Turner, President of the National Bar Association, just said basically the same thing in answer to a question from Specter. Look at the decisions, those are what tell us what ScAlito will do. But it's worth reiterating.
With ScAlito's confirmation, we will have the Four Horsemen of the Apocalypse on the Court, nice guys all. I suppose it's a good thing that the Court will be a pleasant place to work, but the rest of the country probably won't fare as well.