What is the point of judicial hearings on Supreme Court nominees if it is unwritten law — since Bork, anyway — that a candidate is not obligated to give direct testimony? Stock replies such as I cannot comment, even on a hypothetical case since it could very well become a reality before the court and I would therefore be prejudging a case. Or: Without having all the briefs and facts before me it would be indiscreet for me to conjecture.
Why, then, have hearings at all inasmuch as it is but a show of star power for nominee as well as senators? After all, it boils down to display — as in Roberts’ hearing — the justice as knowledgeable, likable, and seemingly trustworthy.
The upshot of absurdity was in the questioning of Alito’s colleague from the same circuit. Justice Lewis, a black, civil rights advocate inferred that although they differed often on civil rights cases, Lewis acknowledged the sincerity and judicial integrity of Alito’s opinions. Yeah, right. That is like saying though you hate your father for being an Italian immigrant, I respect the sincerity of your hatred.
Judicial integrity presupposes cold constructionist assessment of the Constitution, which in itself is a commitment to prejudging cases of variables; that is, ignoring the humanside of reality. Were the Constitution set in stone as the Ten Commandments, then there would be no need for a Supreme Court — thou shalt or shalt not, period — even to the extent of revisiting “settled” cases such as Roe v. Wade, not perhaps to be rejected, but to install certain conditions as the ostensibly conservative court has been doing, or as Alito himself displayed in his dissent that prohibiting the interstate sale of machine guns is unconstitutional.
Another absurd moment during the hearings was Kennedy’s fetish over Alito’s membership as a student in Princeton’s CAP restricting minorities and women on campus. There was no evidence that he actively subscribed to the campus organization and yet Kennedy harped on Alito’s having entered this membership long ago on an employment application for a Reagan administration position. Anyone in a search of a job, whether ill-advised or not, is going to suck up to a future boss. It is a forgivable humanside experience, and Kennedy, no less than a justice, should not take it literally and ominously. If Jonah had swallowed the whale, one should laugh it off as simply Jonah’s wishful, vengeful thinking.
Personally, I feel Alito is a cold fish, but so what? He is obviously competent, though at times evasive to the point of cutesy by extremely rationalizing fine points in his judicial record without blinking an eye — after all, drug lords have been known to plant contraband on children! Furthermore, he has a nice family and therefore must have a sense of family values. He also has an immigrant background — who doesn’t — which in itself is sufficient reason that he may indeed have sensitivity for the “little guy,” although in some instances because of this background the inverse is true by denial.
In the last analysis the President invariably gets what he wants even though it is no guarantee that whatever the extent of the examination the President could still wind up with a pig in a blanket. The political reality is that the pendulum of the Constitution arcs to the constructionist and back to the humanist throughout our history — and that’s all we need to know.
Copyright © 2006 Richard R. Kennedy All rights reserved. Revised: January 14, 2006.
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