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Bench Memos

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Precedent and Politicization



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Roger Pilon has a somewhat strange and unsatisfying op-ed in today’s Wall Street Journal. He begins by noting that Judge Alito’s now-famous 1985 job application, mentioning his rejection of a constitutional right to an abortion, has “changed the dynamics of the upcoming confirmation battle.” It certainly clarifies matters; how much it alters the probabilities of this or that outcome is difficult to say.

Then Pilon quotes Sen. John Cornyn as saying that Alito’s long-ago application “may be a legal opinion, but it is not an answer to the question, ‘If confirmed, will you apply the principles of stare decisis in regard to Supreme Court decisions, including Roe v. Wade?’” I haven’t seen this remark of Cornyn’s before, so I don’t know whether the senator wants this question asked or shouted down if someone does ask it (I suspect the latter). Pilon says “the proper answer is neither yes or no” to this question. But that can’t be right. The only answer to such a question is “yes.” The reason is that pledging allegiance to the “principles of stare decisis” is not the same thing as declaring one’s view on the future of any precedent in particular. If one goes back to the 1992 Casey ruling, for instance, one finds (at least) two accounts of what the “principles of stare decisis” properly mean and require, where constitutional decisions are concerned: the view of the joint opinion authored by O’Connor, Kennedy, and Souter, and the view given by the late Chief Justice Rehnquist. Anyone answering the question framed by Sen. Cornyn can answer “yes” without revealing whether he takes the view of O’Connor et al. or that of Rehnquist.

I think that Cornyn, if Pilon quotes him correctly, mistakenly thought he was framing a question about a nominee’s commitment to preserve any and all precedents. But no prospective justice of the Supreme Court can pledge himself to the proposition that his predecessors were never wrong, or that the present state of constitutional law as of his arrival on the bench is neither too soft nor too hard but “just right.” Sen. Cornyn surely knows that.

What Cornyn must really have been thinking about some variant of the question, “Do you think that the principles of stare decisis counsel preservation or destruction of Roe v. Wade as a precedent in constitutional law?” That is plainly what Pilon sees in Cornyn’s question himself. And this is what he doesn’t want Alito to talk about in his hearings.

But since Pilon thinks that all the rest of us can talk about it (that’s what the bulk of his article discusses), what reason is there for Judge Alito to avoid talking about it in front of the Senate Judiciary Committee? Pilon says that his answer might affect whether he is confirmed to the Court! Here’s the core of Pilon’s argument:

[W]ere Judge Alito to answer yes or no to Sen. Cornyn’s question, he would in effect be revealing his hand on a wide array of questions potentially before the court, including Roe. The effect, insofar as his answer would correlate with a Senate decision to confirm or not to confirm, would be to decide those cases politically, not legally, which is why he should refuse to answer that question.

Notice that there is no real “judicial ethics” principle lurking in Pilon’s lines here–no suggestion that Alito would compromise his integrity as a judge, such that he would have to recuse himself from cases whose circumstances he came too close to discussing with senators. No, this is a straight-up political rationale. Politics might enter into the political process of choosing a justice of the Supreme Court!

Pilon ends this piece by saying that the partisans who pressed the Court to decide Roe in 1973 “politicized the court then. They should not be allowed to do it again.” This is odd. Does Pilon think that the only people who want to know whether Judge Alito still thinks what he thought in 1985, and what he might (I say might, not will) be prepared to do to act on that thought, are supporters of Roe? Implacable opponents of Roe–I count myself as one–want to know too. And a judicial confirmation process, before an individual takes an oath that shields him behind life tenure, is the time to find out.

Politics about the Court is the only way to solve the problem of politics on the Court. So let’s have all cards on the table that ethics and the integrity of the judicial process will allow. I’m confident Sam Alito will still be confirmed at the end of the process.



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