The Prejudgment Dodge

Today's must-read comes from The Washington Post's Ruth Marcus, who crystallizes what irritated me about the Alito kabuki performance.

Alito ducked numerous questions on the grounds that he would not want to pre-judge any cases. He also swore up, down and sideways that he would as a Supreme Court justice approach each case with an open mind, carefully studying the facts and coming to a conclusion without being affected by ideology.

As Marcus notes, Alito

sounded like judge-as-computer: Feed the data in, and the machine, if it is functioning properly, will churn out the right result. "The judge has to do what the law requires," he said, as if that were always discernible.

But of course by the court's very nature, there are cases that do not always lend themselves to such an easy result. (Presumably such cases would be resolved at lower levels.)

For even the most responsible, well-intentioned judge, respectful of precedent and -- to use the adjective du jour -- modest in his conception of the judicial role, is called on to make, well, judgment calls, filling gaps in legislation or interpreting capacious constitutional phrases. The higher up the judicial ladder, the harder the cases -- and the more important the judge's underlying worldview, judicial philosophy and constitutional vision. There is, in short, a soul inside every judicial machine.

So if we accept Alito's (and Roberts' and other judges') assurance that he will address each case on its merits as best he can, what's wrong with senators trying to explore the judicial dark spaces, the gaps and capacious constitutional phrases, as Marcus puts it, that Alito will also have to explore. He's not a robot, and jurisprudence is not a mathematical equation. There's nothing wrong with trying to get a sense of the judicial philosophy that will guide the justice (and by extension, the court).

And if the counter-argument is that discussing would be tantamount to pre-judging cases, then we can't take him at his word he will approach each case with an open mind. That is unless we are to believe that someone who has devoted himself to the law has never given any thought to the legal limits of presidential power, or the constitutionality of Roe v. Wade, etc. etc -- a notion which would strain credulity.

Of course the answer is that Alito and company use the prejudgment dodge to minimize the chances of garnering nay votes, so it's unlikely to change unless senators stop buying and demand real answers.