Reflecting on Justice Alito's Confirmation Hearings: Not All Law is Politics in Robes

In a January 14 Wall Street Journal article entitled Not All Law is Politics in Robes (available for a fee), Jonathan Adler offers these comments:

...Sen. Joseph Biden suggested in frustration that the Senate scrap confirmation hearings and simply debate the nominee's decisions as if they were considering legislation.

Mr. Biden's remarks are symptomatic of a larger problem: the assumption that judicial nominees are politicians with policy views that they will -- and should -- impose from the bench. This assumption is most brazenly made when interest groups characterize nominees as "for" or "against" specific policies...

This is not an entirely new phenomenon...Yet the scale of activist involvement in judicial nominations today is unprecedented...It doesn't hurt, too, that a high-profile campaign to block (or support) a Supreme Court nominee is an effective way to raise funds.

For most groups, opposition to Judge Alito is purely result-oriented...

Journalists have also treated judicial nominees like political candidates. Several media outlets conducted quantitative analyses of Judge Alito's decisions, detailing how often he held "for" or "against" a given side. Instead of analyzing his reasoning, and the extent to which it adhered to or departed from applicable precedent, the analyses tallied his opinions based upon their results...These analyses, in turn, were relied upon by senators seeking to tar Judge Alito as "for" or "against" given causes.

Setting aside the methodological problems...such analyses are not particularly probative of judicial fitness...The relevant question is not who won or lost but whether the judge applied the law in a neutral and consistent manner...

Viewing judges as life-tenured politicians who get to impose their own policy preferences furthers the downward spiral of judicial politicization. To be sure, judges themselves are not blameless. The Supreme Court's willingness to inject itself into controversies traditionally resolved by the political branches of government only encourages interest groups to devote resources to shaping the federal bench.

Reversing the trend will be difficult. In today's political climate, to say that the judiciary should not resolve an issue is itself viewed as taking a side. Ironically, the same senators who worry that Judge Alito shows insufficient respect for the political branches are aghast that he might leave some thorny issues for the elected branches to sort out...

...Judge Alito stressed that the process of judging -- the exercise of judgment rather than will -- is more important than a specific result. His testimony was a forthright reminder that not all law is politics in robes...

Which is why Wendy Long wrote the following in Justice Alito: What It Means:

The confirmation of Justice Alito is a great moment for the country for two reasons.

One: the triumph of quality. We have a new Justice with outstanding qualifications and experience, proving that the demagogues of the liberal left can no longer 'Bork' such outstanding nominees. The process is still nasty, and the demagogues still try their hardest, but the partisan judicial filibuster has failed...it is clear that his attackers are the real extremists.

Two: the triumph of the philosophy of judicial restraint. Americans are appreciating the virtue of judicial modesty and respect for democracy in our courts. The last few years, Americans have grown increasingly frustrated with out-of-control judges imposing a leftist agenda on them through judicial activism...Justices like Chief Justice Roberts and Justice Alito hold the promise of greater faithfulness to the Constitution and the laws enacted by the people through their elected representatives. Today, a significant step has been taken in restoring American self-government.