Friday, January 13, 2006

ALITO: just a great exchange

KOHL: Thank you very much, Mr. Chairman.

Judge Alito, we heard a lot of discussion yesterday about the proper role of the judge in our system.

KOHL: Some said that a judge should favor neither the, quote, "big guy or the little guy, but simply apply the law and not make the law."

Based on what you said yesterday, I believe that you would agree generally with this characterization.

However, to me, it's not quite so simple. Just as no two umpires call the same game exactly, no two judges see a case in exactly the same way. Laws and the Constitution are often ambiguous and capable of many interpretations. Those interpretations are the result of judges with different judicial philosophies. Some judges have a more liberal judicial philosophy, while others are more conservative.

And we're here trying to figure out what your judicial philosophy is. That's probably the principal point of this hearing.

If the law were so simple we would not have as many 5-4 decisions.

It seems to me that many of the most fundamental protections of civil rights and civil liberties that we take for granted today -- things such as school integration, the principle of one person, one vote, the principle that the accused have a right to a lawyer in criminal cases, and the right of contraception, just to name a few -- have come when judges have been willing to look beyond rigid legal doctrines that prevailed at the times of those rulings.

The neutral approach, that of the judge just applying the law, is very often inadequate to ensure social progress, right historic wrongs and protect civil liberties so essential to our democracy.

So isn't it true, Judge Alito, that a neutral judge would never have reached these conclusions? In fact, for decades, courts did not reach these conclusions.

So would you agree that these cases were rightly decided, number one; and required, number two, that judges apply a more expansive, imaginative view of the Constitution?

ALITO: I think that the Constitution contains both some very specific provisions, and there the job of understanding what the provision means and applying it to new factual situations that come up is relatively easy.

The Constitution sets age limits, for example, for people who want to hold various federal offices and there can't be much debate about what that means or how it applies.

But it also contains some broad principles: no unreasonable search and seizures, the guarantee that nobody will be deprived of life, liberty or property without due process of law, equal protection of the laws. And in those instances, it is the job of the judiciary to try to understand the principle and apply it to the new situations that come before the judiciary.

I think the judiciary has to do that in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution.

They have to identify the principle that is to be applied under these broader provisions of the Constitution and apply it, but I don't see that as being the same thing as the judges injecting his or her policy views or preferences or ideas about the direction in which the society should be moving into the decision-making process.

KOHL: These decisions to which I just referred pushed society into new directions. And they came about -- didn't they? -- as a result of the Supreme Court's willingness to look at the Constitution in perhaps a different and a new way and take a new approach and a new avenue, which is not entirely consistent with a neutral judge simply applying the law.

KOHL: The law is the law. It's not hard to find that out, as you somewhat suggested, that you're an umpire. A ball is a ball; a strike is a strike.

I'm suggesting that it's -- and I would like to hope you would agree that it's somewhat if not a lot more complex and sophisticated. If it weren't true, we could have a lot of views here today.

I think you're unique in many ways. And part of that is your complexity, your sophistication, your ability to look at the Constitution and, if necessary, see new meanings that weren't seen there before. Isn't that true?

ALITO: Well, Senator, I would never say that it is an easy process. There are some easy cases, but there are lot of very difficult cases. And once you have identified the principle, the job of applying it to particular cases is often not easy at all.

But what the judge has to do is make sure that the judge is being true to the principal that is expressed in the Constitution and not to the judge's principle, not to some idea that the judge has.

And sometimes this results in ground-breaking decisions; sometimes that is because new issues come up. Sometimes it is because the principle that is embodied in a constitutional provision has long been neglected.

That was certainly true with respect to the equal protection clause. There was a long period between Plessy v. Ferguson and Brown v. Board of Education when the true meaning of the equal protection clause was not recognized in the decisions of the Supreme Court.

ALITO: And when Brown was finally decided, that was not an instance of the court changing the meaning of the equal protection clause; it was an instance of a court writing an incorrect interpretation that had prevailed for a long period of time.

KOHL: OK.

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