If only Sam Alito's confirmation hearings had started with today's polite final exam in constitutional law, and without all the bluster and chest-thumpery of the last two days. This morning's cross-examination by Democratic senators comes as close as we will get to hearing a substantive discussion of the nominee's views. As the senators take turns politely examining Alito on issues ranging from the death penalty, to the limits on the president's plenary war powers, to who—other than the Lorax—speaks for the trees, subtle differences between Alito's approach to these hearings and that of John Roberts begin to come through.
At his hearings, Roberts sounded the notes of "humility" and "modesty" repeatedly. Over and over, he emphasized the need for judicial deference—to precedent, to the other branches of government, and also to his colleagues on the court. He declined to answer dozens more questions than did Alito. But his casting of himself as a modest cog in a vast and complicated machine afforded real comfort even to those of us concerned about his substantive views.
At first blush, Alito's approach appears simply to be a different flavor of judicial modesty: Where Roberts spoke repeatedly of deference to other institutions, Alito persistently defers to the legal process itself. He tells us, over and over again, that he approaches cases with an "open mind." He says he would start analyzing any issue by closely scrutinizing the relevant statute. He insists—time and again—that he hasn't yet fully studied the issue at hand and cannot therefore offer an opinion.
Now, I agree, in general, that an open mind is a terrible thing to waste. But Alito's open mind is beginning to swallow everything else in sight. Contrast, for instance, John Roberts' numerous uses of the phrase "I have no quarrel with that," when responding to questions about cases ranging from Griswoldv. Connecticut to Moore v. East Cleveland, to Alito's nearly unlimited open-mindedness about past precedent. Only Brown v. Board of Education appears to be a closed and settled matter to him. Certainly Roe v. Wade is not. Roberts' "no quarrel" line may have started to sound like it was coming out of a vending machine after a while, but it at least suggested a willingness to let sleeping precedent lie. Alito is far less deferential. He hasn't yet made up his mind.
When asked what he thinks of precedential cases this morning, Alito goes with his standard, "That is an important precedent of the court." That is a declarative statement, not a judgment. He frequently adds that precedent is not an "inexorable command." And then he tells us that it would be irresponsible for him to hazard an opinion about any specific case or legal question without going through the "whole judicial process." In other words, precedent should bind, except when Alito goes through his painstaking process and finds that it shouldn't; other branches of government are due great deference, except when Alito's meticulous legal analysis finds they are not; and innocent people have the constitutional right to be free from execution, unless—after meticulous consideration—he finds they do not. Alito is properly renowned for his adherence to that careful and rigorous process. But it starts to look as though absolutely nothing else has any weight with him at all.
In one of the most poignant exchanges of the morning, Sen. Herb Kohl, D-Wis., asks the nominee—almost pleadingly—whether he thinks he might become a justice who "fills the same role" as Sandra Day O'Connor; if "in your opinion, you will turn out in a general way to be that sort of justice?"
Alito's response speaks volumes. He says the quality he most admires in O'Connor is her "meticulous devotion to the facts," the appreciation of her "dedication to a case-by-case approach." That, oddly enough, is precisely the quality for which O'Connor has been most roundly criticized. Detractors, from the right and the left, never tire of accusing her of approaching every case from scratch, creating "good-for-one-ride-only" precedents, and fashioning new rules that depend entirely on her own subjective determinations. There is, say her critics, a terrific grandiosity in a jurisprudential approach that elevates one justice's views over those of her colleagues and allows her own judicial process to trump the wishes of her colleagues, the states, or the other branches of government.
Theoretically, there should be comfort in hearing a judge promise to approach each new case as an open book; to drill deep into the relevant statutes and the case law and emerge with an opinion only after a meticulous analysis of the matter at hand. It suggests that past decisions aren't predictive and that every case brings a fresh start. It hints at a totally neutral process, untainted by personal views or preferences. It says there is no jurisprudential theory at work but only a mechanical process.
But doesn't Alito's open-mind mantra imply that with each fresh, new start he will be the lone, final, unfettered arbiter of every question? Do we really want every legal question to be open and every rule to be mutable? Is there something to be said for a nominee, like John Roberts, who didn't insist that the answer to every question reside exclusively in his own open mind?