No agenda?
Scalito had the first day of his confirmation hearing today, and as reported by the Times, he made some interesting statements about the proper role of a judge as opposed to an attorney:
"The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand," Judge Alito said in remarks that lasted about 11 minutes. "But a judge can't think that way. A judge can't have any agenda. A judge can't have any preferred outcome in any particular case. And a judge certainly doesn't have a client.
"The judge's only obligation - and it's a solemn obligation - is to the rule of law," he continued. "And what that means is that in every single case, the judge has to do what the law requires."
It's very hard to disagree with what he says, but it's worth investigating whether his decisions bear out these statements. One would think that, if he were simply following where the law leads him, regardless of his political preferences, the law would sometimes lead him to take positions that don't align with his political views. Doesn't that seem obvious?
The opposite appears to be true, however. In thisreport from Yale Law School, we see that in opinions in which his positions are least restrained, those in which he was concurring or dissenting so he didn't have to attract the vote of a colleague, certain trends are evident:
. . . [H]e rules in favor of institutional actors and defers to agency decisions in many settings while showing skepticism toward individual litigants’ claims; he appears to support a narrow view of civil rights, prisoners’ rights, and workers’ rights but a broad view of religious freedoms; he appears willing to uphold legislative restrictions on abortion; and he is willing to limit congressional power. When able, he has sought to move the law to achieve the broad philosophical purposes articulated in the memorandum he submitted in November 1985 as part of his application to become Deputy Assistant Attorney General in charge of the Office of Legal Counsel.
I think the full report is worth reading, but any claim to his being a neutral or evenhanded jurist seems pretty bogus. I would like to see Senators on the Judiciary Committee challenge him on this point, and ask him to show them even one case in which his disinterested pursuit of "The Law" has led him to a conclusion that does not advance his own political preferences.
"The judge's only obligation - and it's a solemn obligation - is to the rule of law," he continued. "And what that means is that in every single case, the judge has to do what the law requires."
It's very hard to disagree with what he says, but it's worth investigating whether his decisions bear out these statements. One would think that, if he were simply following where the law leads him, regardless of his political preferences, the law would sometimes lead him to take positions that don't align with his political views. Doesn't that seem obvious?
The opposite appears to be true, however. In this
. . . [H]e rules in favor of institutional actors and defers to agency decisions in many settings while showing skepticism toward individual litigants’ claims; he appears to support a narrow view of civil rights, prisoners’ rights, and workers’ rights but a broad view of religious freedoms; he appears willing to uphold legislative restrictions on abortion; and he is willing to limit congressional power. When able, he has sought to move the law to achieve the broad philosophical purposes articulated in the memorandum he submitted in November 1985 as part of his application to become Deputy Assistant Attorney General in charge of the Office of Legal Counsel.
I think the full report is worth reading, but any claim to his being a neutral or evenhanded jurist seems pretty bogus. I would like to see Senators on the Judiciary Committee challenge him on this point, and ask him to show them even one case in which his disinterested pursuit of "The Law" has led him to a conclusion that does not advance his own political preferences.
posted by Jack McCullough at 9:35 PM
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