Live Controversy

Yesterday's Judiciary Committee Kabuki Theatre was more of the same: Senators trying to get Judge Alito to take a position on something controversial, and Alito adroitly appearing to make an answer without actually doing so. There's something ironic about a job candidate not being able to express any opinions during the job interview, when a primary function of the job is to issue opinions. While the Supreme Court is limited to hearing "live controversies" (i.e., they can't make rulings on hypotheticals without an actual case before them), it seems that judicial nominees are effectively limited to speaking about dead controversies. Alito was willing to condemn the infamous 1896 Plessy v. Ferguson decision ("separate but equal"), and was willing to affirm agreement with Brown v. Board of Education (overturning Plessy in 1954), since these are cases no reasonable person still entertains any controversy over (except perhaps for a few of the Concerned Alumni of Princeton). However, concerning anything that might conceivably come before the Court (i.e., still a live controversy), Alito would express no opinion. He would not express an opinion as to whether he agreed with more recent and/or controversial Court decisions. He would not express an opinion as to whether he agreed or disagreed with his own past opinions expressed in speeches and letters in his record. His ability to seem to actually answer while actually being evasive was quite impressive. When asked, for example, whether he agreed with last year's Supreme Court decision in Kelo (a stunning decision in which the Court allowed a city to condemn perfectly good homes just to allow private interests to commercially redevelop the property), Alito expressed his sympathy with how hard it must be to lose your home, while saying nothing about the merits of the case nor discussing any theories about the "takings clause". We heard a lot about "stare decisis", but did we gain any practical insight into what it really means? Apparently, it means that precedent should be respected most of the time but not always.

To be fair, I can't really fault Alito for any of this performance. The man is doing what needs done in order to get confirmed. It's doubtful that even Solomon could get confirmed by this process if he gave full, open, and honest answers to the panel. The fault for the charade lies in the process itself, and all its attendant politics. While the confirmation hearings have become something of a bizarre ritual, I have to say that of the three branches of government, the selection process for federal judges is better than the others. While there are certainly exceptions, I think in general that smart and decent people are selected as judges, and the "cream rises to the top". Now, Congress and the President, on the other hand, well, that's a different story.