Tuesday, January 10, 2006

Forget "judicial philosophy" in taking the measure of SCOTUS nominee

Confirmation hearings for Judge Alito's nomination to the Supreme Court are underway and the chattering classes wait and wonder how the nominee's "judicial philosophy" will be revealed in the course of these proceedings.

What is a "judicial philosophy"? Judges apply the law to the unique set of facts presented by each case. In trial courts, judges may themselves be the fact-finders. In reviewing courts, the facts are generally established by the record, although there may be a legal dispute as to whether the fact finder should or should not have been given the opportunity to hear particular facts as part of the evidence. All courts, from the lowest to the Supreme Court of the United States are guided by precedent; while an intermediate court may 'recognize' a new principle of law, and thereby establish a new precedent, only a state's highest court or the United States Supreme Court ever get to change precedents. The constitutions of the several states and of the United States provide additional limits on even the highest courts' discretion.

If I believe that our common law represents a struggle to identify and apply natural principles of justice, that may be a philosophy, but how does it help me determine whether the health insurer's claim for reimbursement is governed by ERISA or by state contract law? How does it help you decide whether the general contractor's insurer is excused from providing defense or indemnification when the general contractor tenders its defense to the subcontractor's CGL carrier?

So philosophy is of limited assistance. So, too, is the frontal assault on which the Senate Democrats seem insistent: If Alito really were silly enough to venture any substantive predictions on how he might rule on any case that may come before him on the Supreme Court, he should be disqualified on that basis alone.

Here's what I think the Senate should really be looking for: Does this man have any common sense and has he ever rubbed elbows with the rest of us?

Judge Alito is clearly very, very smart. We want smart people for this job. But is he nice? Or is he arrogant and patronizing? I don't suggest that we should dispense with his testimony entirely -- but I'd think it more important to hear from his former law clerks, and from non-lawyer employees in office of the Clerk of the Third Circuit Court. What does his barber say about him? Does he eat lunch in the same place every day? What does the cafeteria staff think of him (or the waitstaff at the greasy spoon)?

What about the lawyers who've appeared before him throughout his years on the bench? I'd want to talk to the men and women who've lost cases on which he's sat, as well as those who've won: Did they find him well-prepared and thoughtful? Or mean-spirited and nasty? I'll bet he's been nice as can be since his name was floated as a possible nominee -- but what about before?

I know I am troubled by the absence of private sector practice in Judge Alito's past. He's never had to sweat a paycheck. If he's ever missed a mortgage payment, it's because he overextended himself, not because a client stiffed him. There is something to be said for proving that one can stand alone and unprotected in the marketplace (not that I wouldn't give it up in a heartbeat for a real paycheck and a pension....). Except in my secret fantasies, however, being self-employed is not a necessary qualification for a seat on the Supreme Court. But not only has Judge Alito not been an entrepreneur, he's never worked for an employer other than the government. That is not disqualifying -- but it is a deficiency.

So we have to look at other things to determine if Judge Alito might understand an ordinary person's point of view. Does Judge Alito have season tickets for any sporting events? I'd like to talk to the people who sit around him at the games.

Did he ever get pulled over for speeding? I'd like to talk to the cop.

There's no point in asking Judge Alito about abortion. When we'd finished these background interviews, I'd ask Alito what books he's reading. To what newspapers and magazines does he subscribe? If I ask the question directly about what he listens to on the radio, I know I'm going to get a response about the news station, or NPR, or he only listens to Books on Tape (or Legal Tomes on Tape). So I'd ask instead: What are the pre-sets on your car radio? What's the last movie you saw in the theatre? What's the last movie you rented at Blockbuster?

There are no right answers to these questions (although, I suppose, if he reveals he's a Johnny Knoxville fan, we may have to reconsider this idea that he's really, really smart). It's just a matter of determining if there's a measure of humanity to go along with the intellect -- because both are particularly needed to handle the questions that come before the Supreme Court of the United States.

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