The Alito confirmation process continues to occupy a good bit of my interest. Senate Judiciary Committee members, who used their time not to ask pertinent questions of the nominee and listen carefully to his answers, but to speechify, turned the questioning of Judge Alito into a circus. The behavior of the Committee was, to say the least, disappointing. I was angered by the demeanor of the Democrat members of the Committee, who stooped to character assassination in their desperation to derail this nomination, and while I understand that Republicans felt obligated to use their time to counter the smears of the Democrat members, we heard little of real substance.
When it comes to Justices on the Court, both the radical Left and the radical Right want activist Justices who will rule according to their particular ideology. So much of the rhetoric focused Judge Alito’s imagined judicial philosophy. And some members of the Committee speculated on how he would rule on various issues, basing their decision whether to confirm the nomination on their own political preferences and whether they think Judge Alito agrees with them. You might think after watching this spectacle that the confirmation process is really just about which ideology Judge Alito embraces, and which side will win the ideological war. It should not be that.
In ideological arguments such as these there is no absolute, no right or wrong, only ideological bias. But when it comes to judicial philosophy there is an absolute. There is a position that is the appropriate position. The proper judicial philosophy eschews the political philosophy of both liberals and conservatives and instead focuses on the text and the meaning of the U.S. Constitution.
In determining whether a nominee is thus qualified to sit on the Supreme Court it is not a valid question to ask whether a nominee will vote to overturn Roe v. Wade, for example, or to ask whether a nominee will vote to grant citizenship rights to illegal immigrants, or other such ideologically oriented specifics. The only valid question for a nominee is whether or not he or she is a judicial originalist: someone who will rule according to the Constitution and appropriately decided legal precedents. How could any patriotic American want anything other than someone who is ideologically neutral?
The liberals in the Senate and on the Judiciary Committee do not want an ideologically neutral Justice. For the most part, conservatives do want ideologically neutral Justices, because that is what conservatism means: adhering to the intent of the Constitution.