Friday, January 13, 2006

The first time as tragedy, the hundredth time as farce

I have been following the confirmation hearings for Samuel Alito, and do not have much original to add to the blogospherics. As I have written before, the Robert Bork hearings in 1987 were a significant step in the development of my own political thinking. There is the nominee -- very different from Bork in his appearance and demeanor, but much like him in philosophy of judging. And here are so many of the same Senators: Biden, Kennedy, Leahy, Specter, Hatch, Grassley.

And right on cue, the Democrats (this time in the minority) start twisting the record and blowing smoke about non-issues. Twenty years ago the nominee joined a conservative group of Princeton alumni, in whose magazine appeared articles that many find offensive. Yikes! Call a press conference! Go into executive session! Subpoena William Rusher's papers! Ditto the Vanguard business, the constant harping on a few sentences from the 1985 job application to the Reagan administration, etc. Ditto the distortions of Judge Alito's judicial record.

When I listen to people with whom I disagree, I usually assume that their statements are made in good faith, candidly and proportionately expressing their true opinions. But what to make of this sort of nonsense? To think that these lines of questioning are reasonable, you would have to view the confirmation hearing as something akin to a counter-espionage or counter-terrorism investigation. The nominee is not who he appears to be: a highly intelligent and broadly respected jurist with an exemplary life and a distinguished career. That is only a "legend", a carefully crafted cover-story put in place by decades of patient tradecraft. The job, therefore, is to penetrate the cover story and expose the sinister secret identity beneath.

(This process, applied to counter-espionage, was described in the interesting book Catching Spies by H. H. A. Cooper and Lawrence J. Redlinger.)

Of course, nowadays a judicial nominee is usually less forthcoming about his views on specific issues than Judge Bork was. Today he simply says, "I can't discuss issues that might come before the Court -- canons of judicial conduct and so forth." So Senators who would really like to know how he would rule on an issue don't get answers to their questions. They complain that the nominee is being uncooperative. What is he trying to hide? And this provides the excuse to pursue the questioning as if they were trying to catch some sort of subversive "mole" in the judicial system. (And this accusation of uncooperativeness is also a handy fig leaf for an eventual "no" vote, which may be necessary for political reasons.)

The game is played both directions; Clinton nominee Ruth Bader Ginsburg was a pioneer of the "Can't discuss issues" approach. But the situation is not entirely "left-right" symmetric. First, recall that Ginsburg was probably the most politically activist person appointed to the Court in a generation, and her previously expressed views on many issues put her at least as far to the left as Bork was to the right. She was certainly much further to the left than Byron White, whom she replaced, and so made a real impact on the ideological "balance" of the Court. Yet she sailed through confirmation 96 to 3. The Republicans did not play the inquisitors in her case, or in Stephen Breyer's.

Second, the "Can't discuss" approach really makes more sense if your judicial philosophy is conservative -- that is, if you believe that judges interpret law rather than make policy. If you think that the Supreme Court should be an agent for social change, shifting US law in a particular direction based on an enlightened view of the Good, importing judicial opinions from other countries as precedents when suitable domestic precedents are lacking -- if you think that, then maybe your fellow citizens do deserve to be told in what direction you are going to take them. On the other hand, if you have a more limited idea of the scope of the Court's authority, and believe that a judge must decide cases based on fairly strict readings of the Constitution, actual legislation and established precedent, then it is reasonable not to shoot your mouth off about an issue on which you will likely have to rule. If a judge is obliged to uphold policies with which he disagrees -- the possibility of executing someone under the age of 18, to take a recent case -- simply because the law runs that way, then the judge's own exact opinion about the policy is of secondary importance.

So here we are in the same old game. But something has changed, hasn't it? In the Roberts hearings, and even more in the Alito hearings, there is a sense that the Democrats have finally jumped the shark. Joe Biden has never been more orally incontinent; Chuck Schumer has never been more annoying; Ted Kennedy has never been more repellent (and for him this is no small achievement). The left-wing interest groups have turned the knobs up to 11 and proclaimed that Judge Alito is the greatest single threat to our Republic. But this time, it does not seem to be having the desired effect, even in the mainstream press. Everybody knows that any Bush nominee would face the same barrage. Therefore, this barrage carries exactly zero information content, and everybody knows it.

Samuel Alito seems to be a good guy, and smart. He really does seem to believe that judging is something other than the exercise of mere political power. That makes him an idealist. But what does that make the self-important gasbags who fulminate behind the big table?


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