As Supreme Court confirmation hearings for Judge Samuel Alito unfold, members of the Senate Judiciary Committee have plenty of questions for President Bush’s nominee. Readers of TheNation.com–and at least one high-profile magazine editor–had plenty of questions as well, about Alito’s judicial philosophy, personal and political beliefs about his judicial philosophy, personal beliefs and political ideology. Here are some of the most thoughtful questions we’ve received so far:
Judge Alito: Since the “signing statement” has no stature or validity in Constitutional law, why have you recommended it so enthusiastically to the Reagan and Bush 43 presidential administrations? What possible purpose does it have except as a predicate to be quoted in case of impeachment?
BRANT LAMB
Judge Alito: Do you think it’s appropriate, indeed ethical, for a sitting member of the Senate Judiciary Committee to take part in preparing a judicial nominee for committee hearings of which he himself will be taking part?
MICHAEL D. BROWN
Judge Alito: You have had numerous decisions overturned and you have voted even more in the minority. Is this the profile of a judge who understands our Constitution, or of someone who is out of touch with its meaning?
DANIEL MILLER
Judge Alito: You say that you would keep an open mind in regard to issues before the court, including those concerning the constitutionality of a woman’s right to an abortion. By “open mind,” do you mean that you could conceive of scenarios under which you would vote to retain a woman’s constitutional right to an abortion? If so, please give us two hypothetical examples of scenarios under which you would rule that women have a constitutional right to an abortion? If no such scenarios come to mind, what do you mean when you say that you have an “open mind” about this issue?
FRED WARD
Question for Mr. Alito: Sir, do the males in your family enjoy robust health and a long life? Or do you suffer hereditary diseases and tend to pass on early?
CHRISTINE BALLARD
A simple question that Alito would probably refuse to answer: “What questions did you answer for the President that you refuse to answer for us (the Senate)?”
JAMES WOLKEN
Does the President of the United States, under the Constitution, have the right to issue statements on policy matters in God’s name?
Do you hold religious beliefs and commitments more sacred than your duty to interpret the Constitution?
SID B. THOMAS
Why not use the hearings, at least briefly, to explode the myth that it is liberal judges–as opposed to conservative judges–who are activists? To that end:
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Judge Alito, what is your definition of a judicial activist? What things do you think we should look for in judging whether a particular judge is a judicial activist?
Do you think that part of what it means to not be a judicial activist involves trying whenever possible to uphold as opposed to striking down legislation adopted by the Congress?
Judge Alito, as I’m sure you’re aware, the Rehnquist Court, in recent years, has struck down as unconstitutional more federal statutes than at any other time in the history of the Supreme Court; one commentator has even suggested that the Court in recent years has been treating Congress more like a troublesome circuit court than as a co-equal branch of the federal government. Do you find this pattern troubling?
Given the recent trend of decisions by the Supreme Court, and by the lower circuit courts, why shouldn’t the Senate, and for that matter the American people, be concerned that a Supreme Court with a Justice Alito on it will be even more inclined to limit the power of Congress to take steps to protect people against abusive corporations, like Enron, to protect the environment, to protect workers from dangerous employment practices and to take other steps that you, Judge Alito, as a political conservative, may not personally agree with?
STEVEN C. DAY
In the case of Bush v. Gore which ultimately decided the US presidential election of 2000, do you believe the US Supreme Court decided that case correctly?
Expecting a yes, what reasoning and precedents justify the outcome?
Why should this case not be used as a precedent for deciding future elections?
For what Constitutional principle should this case have been decided by the US Supreme Court and not the Florida State Supreme Court?
CHARLES KNOWLTON
Judge Alito, during your first day of confirmation hearings you stated that you believe in limits the power of the presidency. This statement is so vague that it has little meaning. Please be more precise as to what you believe those limits are.
Furthermore, what are your views on the intentions of the founding fathers on the separation of powers of the three branches of government?
RICHARD R. PAINTER
Would America be better off if Supreme Court Justices’ lifetime terms were limited, say, to twelve years?
BRINA-RAE SCHUCHMAN
Why is it that our political process has deteriorated to the point where Senators feel that they need not vote to confirm a Supreme Court nominee if said nominee’s political philosophy differs from their own, even if said nominee has met all other qualifications necessary in a nominee for the highest court; and moreover, what can and should be done to reverse this trend?
MARK WEINER
I think there are two questions that should be asked and haven’t been, so far as I know:
First, someone should attack Alito’s “theory of judicial review” as either fatuous or a lie. He says that this is that judges should keep an open mind, not have an agenda, and say what the law is. But NOBODY would disagree with that. Does he think Earl Warren disagreed with that? William Brennan? Of course not.
The question is, Given an open mind and an obligation to say what the law is, what should your mind be open to? What are the relevant considerations?
Also, is your mind open to alternative ways of figuring out what the law is than those you have traditionally espoused? How open are you to something other than constitutional fundamentalism, or originalism, or literalism?
Second, who on the Supreme Court would play Thurgood Marshall to Alito’s Sandra Day O’Connor, and does Alito even feel the value, as O’Connor did, of having someone with Marshall’s perspective on the court? In a tribute to the late Justice Marshall, O’Connor recorded her debt to his “special perspective.” She said:
“At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal argument but also to the power of moral truth…. His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice… [Even after his retirement I found myself] looking expectantly for his raised brow and his twinkling eye, hoping to hear just once more, another story that would, by and by, perhaps change the way I see the world.”
Alito, of course, has never been the voice of the poor or excluded. The only rights he’s ever defended have been those of a powerful government. So it’s fair to ask: Do you think the availability of such wider experience would make an important difference in your views of your responsibilities on the bench? If so, where do you seek that experience in your own life? Where do you see it being provided on this Court? Does that concern you that it is not?
KATRINA VANDEN HEUVEL
