Bench Memos

Nelson on Alito

Nebraska Sen. Ben Nelson has an op-ed in the Omaha World Herald urging an up or down vote for Judge Alito

For me, when it comes to judicial nominees, the issue is judicial activism. Does the nominee want to make law or apply law? The answer to this question is central to the constitutional ideal of separation of powers and could disclose the intent of a nominee to act as a legislator instead of an adjudicator.

For the most part, what I’ve heard from Nebraskans when it comes to considering Supreme Court nominations is that they want the president to appoint and the Senate to confirm a “good judge” and, in the process, to avoid labels and resist litmus tests. The special-interest groups in Washington have litmus tests and expect nominees to adhere to them.

In my meeting with Judge Alito on Nov. 2, he assured me that he was carrying no political agenda to the bench. I asked him if he envisioned himself carrying a hammer and chisel and looking to forge new law. He assured me that he would consider each case on its merits and would bring no agenda to the bench.

The president’s nominees, especially to the Supreme Court, deserve an up-or-down vote, even if the nominee isn’t popular with the special-interest groups in Washington. As a former governor who appointed the entire Nebraska Supreme Court and the entire Nebraska Court of Appeals and more than half the current judges in Nebraska, I understand how important appointments are to our judicial system.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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