11 January 2006

Qualifications for the Post

While driving the last couple of days, I've been listening to the Alito hearings on NPR. (Yep, I'm one of them capital-L Liberals—in case you hadn't figured that out by now—who listens to NPR and resents the right-wing bias of the media in my area.) What I've heard hasn't been encouraging, on several fronts.

Of course, I'd personally prefer to get a somewhat more left-leaning judge than Judge Alito appears to be. That's not going to happen in this administration, so I suppose I have to be satisfied with a smart judge who is willing to take each case on its record, and to change his or her mind.1 I don't think Judge Alito's past membership in the Concerned Alumni of Princeton, over thirty years ago, says all that much about his views today. After all, Justice Black—the pre-Warren Court judge most likely to be labelled "liberal"—had been a member of the KKK at one point, and Justice Powell had been president of the American Bar Association (in John Q. Public's mind today, that latter organization is probably more problematic…). Justice Blackmun grew from being a mere "Minnesota Twin" to the second most liberal member of the Burger Court, after Justice Brennan. This is not entirely because the Court shifted to the right under him; I find it difficult to believe that Justice Blackmun c. 1976 would have written that he could "no longer tinker with the machinery of death."

More troubling has been the blatant incompetence of most of the questioners. Although several of the Senatecreatures hold law licenses, as a group they've betrayed less legal sophistication than the typical second-year law student. In particular, they seem unable to tell when Judge Alito didn't answer the question put to him. Senator Feinstein's exchange yesterday is not the worst example; instead, it's a representative one, and the problem crosses the aisle. Senator Feinstein asked Judge Alito for his views on the "special circumstances" required to overturn an existing precedent. Judge Alito was understandably, and properly, somewhat vague in his answer—but his answer didn't even approach the question. Instead, he discussed what precedent means to him, thankfully avoiding the phrase "super-duper precedent." When later pressed, he mentioned two cases as examples of proper overturning of precedent. The problem, though, is this: Both of those cases turned as much on questions of civil procedure (and, in one of them, inept lawyering below) as on the precedent in question. Thus, Judge Alito didn't answer the question put to him; he wasn't even close, because Senator Feinstein asked him to describe the circumstances themselves—not make shorthand references to cases that might arguably exhibit them in very limited contexts. This indicates to me that Senator Feinstein both didn't understand the answer… and didn't understand her own question, which was probably written for her by a staffer or lobbyist. I have to question the competence of that staffer or lobbyist, too, because the question itself was needlessly convoluted and did not include notes on appropriate follow-ups (Feinstein floundered for a full five minutes after Alito's little verbal essay).

As I said, this hasn't been limited to any particular questioner, or either party, or any region of the nation; I just had the opportunity to take notes on Feinstein's gaffe. There were several more instances this morning, which I was unable to take notes on because I was driving (I have this silly notion that one should keep one's hands on the wheel). What this really means is that we're not getting a sense of anything other than Judge Alito's ability to answer the question he wants to answer, rather than the one asked. He seems to have an impressive knowledge of the case law—and, thus, the foundation of his job—which is at least better than certain other White House nominees for high-level posts… and this time, I don't mean a recently withdrawn nominee for the Court.

  1. Harriet Miers doesn't fall in that classification, based on everything I've read of her. She very well might be different in person. However, on cronyism alone—or, for that matter, on the impropriety of appointing as a judge an individual who has ever personally represented the President, in any capacity—she was an inappropriate choice. And that's before getting into her purported ideology; it wasn't just the conservatives who were concerned about that, Perfesser.