As the hearings for Judge Alito's nomination to the Supreme Court get under way, we might have to look somewhere other than in the questioning of the senators to find the careful analysis we need to see what kind of justice he might make. As the Roberts' hearings demostrated, the senators seem mostly interested in having their own star turns (sometimes they go on for 10 or 15 minutes before actually getting to a question) or acting as conduits for the interest groups of the extreme left and right. Here are a couple of editorials that seem thoughtful to me, one from a conservative-friendly editorial page -- the Chicago Tribune -- and the other from the liberal-leaning Washington Post.
As the Tribune notes, Alito's rulings have often meticulously followed the reasoning of Supreme Court decisions. A good example, not mentioned by the editorial, came in a Pennsylvania case, in which he ruled that it was not unreasonable to ask a woman seeking an abortion to affirm that she had notified the father. His ruling went to great lengths to explain the language of a Supreme Court decision, authored by Sandra Day O'Connor, that attempted to define what an undure burden is or isn't. The fact that O'Connor later changed her mind about what a burden is reflects the frenquent incoherence of the Supreme Court; it says nothing about Alito's personal beliefs. It seems fair to ask him, though, what value he places on Supreme Court precedence in the mix of criteria there are to consider -- constitutional language, legislative intent and so on.
The Post points out that Judge Alito has not only deferred often to the executive branch, which has been much noted, but to all other players in the political process, whether it be a local police department, an immigration official or another judge. This can be admirable, especially to those of us who value judicial restraint, but if carried to extreme can be an abandonment of the judicial duty to articulate reasonable constitutional values. Considering the current controversy over warrantless wiretaps, which cuts across all branches of government, this also seems a reasonable area to explore.
