International House of Dan: What to Make of ScAlito?

Monday, October 31, 2005

What to Make of ScAlito?

I was getting ready to go to the Labor Board this morning to give an affidavit when I heard the news that President Bush had announced his nomination of Judge Samuel Alito to replace Sandra Day O'Connor on the Supreme Court.

At first, reaction to the nomination seemed quiet, but over the course of the day I heard mounting opposition from legislators and groups with which I usually agree. Then I received my PFAW backgrounder email on Judge Alito, scanned their preliminary report and became convinced that this is not a nomination that I can agree with. I signed PFAW's online petition, and urge everyone else to do the same.

While I'm still trying to learn more about the specifics of the nominee's philosophy, I have to take issue with the announcement in general, for similar reasons as I did that of Miers. Said the President of Judge Alito's tenure on the 3rd Circuit Court of Appeals: "Judge Alito has served with distinction on that court for 15 years and now has more prior judicial experience than any Supreme Court nominee in more than 70 years." I'm not going to go into an analysis of the sort I used for Miers, but 1935 puts us between Justice Cardozo (who ascended in 1932 after 18 years on the Court of Appeals) and Justice Black (1937). Clearly "more than 70 years" means "between 70 and 73 years." Most Justices who ascended to the Supreme Court during that time did in fact have less judicial experience than Mr. Alito; Justice Burger comes close with 13 years and next is Justice Blackmun with 11, but the remaining Justices with prior judicial experience tend to be tapped for the High Court within about 5. What the Justices in that 70 year span have in spades over Alito is other experience in private practice, academia, or government. I think it's wrong to reduce the experience that these men brought to the Court (as professors, governors, U.S. Representatives and Senators) to a single aspect of their careers for the sake of making a favorable comparison to a nominee.

What I must reiterate from my earlier post on the Miers nomination is that I find judicial experience to be an irrelevant factor in isolation. A review of the biographies of Supreme Court Justices since 1935 reveals a wealth of experience in various aspects of civic and political life. I don't think it matters by itself that Miers lacked judicial experience, or that Alito has more than most. Supreme Court nominees tend to be in the same ballpark in terms of age, and since there is no list of qualifications for them, they will invariably have spent their lives in a variety of pursuits. Felix Frankfurter taught law at Harvard for 25 years before being nominated, how do we compare that with 15 years on the Court of Appeals for Alito? We don't, and I just wish the President would stop looking at judicial experience in terms of Justices past and reducing accomplished lives to trivial statistics. This oversimplification of issues is typical of a move aimed to appease the conservative base, and it saddens me that if education does not improve, the left will have to adopt it in order to survive.

This "last 70 years" for Alito and "last 35 years" for Miers is just more of this "pro-life", "death tax", "personal accounts", "or the terrorists win" and "activist judge" branding that the right has become so good at during this administration. Woodrow Wilson once said "a conservative is a man who sits and thinks... mostly sits." This is not going to change as long as 51% of the people focus on the slogan created for an issue instead of on the issue itself. I wrote in the Miers post that "a lack of judicial experience casts no aspersions on one's qualifications to serve on the highest court when, as with these men, other experience has taken its place." The converse must be true as well, that mere wealth of judicial experience is not enough to qualify an individual, especially when other experience is lacking.

For what it's worth, in the last 70 years Homer Thornberry had 15 years on the bench when he was nominated, Clement Haynsworth and Harold Carswell each had 12, and you don't see any of them on the bench. As far as people who could still be nominated today, Douglas Ginsburg has 19 years and counting. Perhaps he should be renominated, surely Mr. Bush could agree with President Reagan's 1987 assessment that "Judge Ginsburg is, as I am, as every justice I've nominated has been, a believer in judicial restraint; that is, that the proper role of the courts is to interpret the law, not make it." (Sound familiar?) If he is willing to overlook Ginsburg's past marijuana use and the effect it might have had on his views on privacy, then the President would get to drape himself in the Gipper's shadow once again. Photo-op anyone?


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