Not All Law Is Politics in Robes

by Jonathan H. Adler

My weekend WSJ Rule of Law column on the Alito confirmation hearings is here (may require subscription). Some excerpts

Samuel Alito has delivered an impressive performance under interrogation, revealing a humility — and a command of legal matters — well beyond that of his inquisitors. It was clear that many of those questioning him had little interest in the substance of his answers, particularly since he would not tell senators how he would resolve contentious issues that may come before the court. . . .

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. . . .
To his credit, Judge Alito explained the process he would go through to evaluate various types of cases without committing himself to a given outcome. He exhibited the same qualities before the Senate Judiciary Committee that have so impressed his colleagues and those who have studied his record on the bench. 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.