Samuel AlitoIt’s hard to believe, but the big week is finally here. The confirmation hearings for Samuel Alito will begin today at noon EST. For years, many political commentators have predicted that this particular Senate hearing—the one discussing the replacement for swing Justice Sandra Day O’Connor—will be an unprecedented showdown between the political left and right.
But what, exactly, is behind the furor?
To hear political commentators speak, all sides seem to be espousing the same idea: Good judges should neutrally apply the law to situations before them. Liberal Democratic politicians will say it, as will conservative Republicans. But each side will then identify different judges as their "ideal" candidate for the bench. "Neutrally apply the law" seems to mean something different to each side of the aisle. But what?
The difference is in judicial philosophy. Each side differs in their preferred method of interpreting the law.
Some judges exercise a philosophy of restraint. They are originalists. They seek to find and apply the original meaning of a text, believing that new textual meanings, when needed, should be added by elected legislators. They recognize that the Constitution has one meaning that does not change over time. They are likely to say that shifting political or cultural considerations should be reflected in the legislature, not in judicial opinions. These judges see themselves as the umpires of the legal arena, doing their bests to call balls and strikes within a pre-determined strike zone.
Other judges, by contrast, maintain a more activist judicial philosophy. These judges tend to speak of the Constitution as a "living" document with a meaning that changes over time. Such a statement is as ridiculous as believing that an umpire can unilaterally change the strike zone over the course of several games, months, or years. A formal rule change is needed before an umpire can start calling balls thrown at ankle height a "strike." In the same way, if and when an amendment to the Constitution or laws is needed, it is the job of lawmakers, not judges, to begin this process.
After all, legislators who misread the political tealeaves can be voted out of office. Judges cannot.
The President has chosen to nominate Alito because he believes that Alito will exercise a philosophy of restraint. All evidence indicates that his confidence in Alito is well-founded. Alito will do his best to apply a pre-existing strike zone to the situation before him. He will not create new strike zones as he perceives that the Constitution is "growing" or "changing" over time.
Such a situation is healthy for our country. Judges who exercise a philosophy of restraint allow the voters to govern themselves. By contrast, activist judges undermine the democratic principles in our Constitution, instead setting themselves up as the ultimate arbiters of what is good and bad, right or wrong.
When Senators argue about Alito’s fitness this week, remember that they are saying the same words, but with different meanings. Some Senators want judges who are restrained. Others like the world in which activist judges can use a "living" Constitution to deliver political results.