Bench Memos

Leahy Should Be Happy

I’m here in the Alito confirmation hearing room — where, by the way, Judge Alito introduced his wonderful family moments ago. Senator Leahy is making an opening statement that began: “The challenge for Judge Alito is to demonstrate he’ll protect the rights and liberties of all Americans against overreaching government power.” If Sen. Leahy really is interested in this, and an “independent federal judiciary,” about which he is now speaking, then he can’t find a better nominee than Judge Alito. He has a 15 year record of restraining himself as a circuit judge from the temptation to make policy from the bench that reflects his, or anyone else’s, views. He has ruled, based on the written Constitution and Supreme Court precedent, that statutes cannot stand when congress oversteps its constitutional authority. Most important for Leahy, under Judge Alito’s decisionmaking, Americans will retain the power to govern themselves rather than to be governed by unelected judges. If Sen. Leahy honestly reflects on this, he should be very happy with Judge Alito.

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