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Is a judicial 'agenda' always so bad?

Senators should get beyond platitudes about the 'rule of law' and look at a nominee's constitutional vision.

January 12, 2006|Mark Tushnet | MARK TUSHNET, author of "A Court Divided: The Rehnquist Court and the Future of Constitutional Law" (W.W. Norton, 2005), teaches constitutional law at Georgetown University Law Center.

IN HIS OPENING remarks Monday, Samuel A. Alito Jr. told the Senate Judiciary Committee that as a judge his only commitment was to the rule of law, and that he didn't -- and wouldn't -- bring any "agenda" or "preferred outcome" to the Supreme Court. Fair enough. But what exactly does it mean to say that you're committed to the rule of law and nothing else?

Consider a case that came before Alito as a federal appeals court judge in 1996. United States vs. Rybar was a constitutional challenge to a federal statute making it a crime to possess a machine gun. Alito thought that a then-recent Supreme Court decision meant that the machine-gun statute was unconstitutional, although he agreed that Congress could rewrite the statute to prohibit possession of most machine guns. Two of his colleagues disagreed with Alito's reading of the Constitution and the Supreme Court precedents.

I'm completely willing to believe that Alito thought that his position was consistent with, and even required by, the rule of law as he understood it. What about his colleagues? Were they therefore pursuing an "agenda;" were they somehow looking for a "preferred outcome"? I don't think so, and I doubt that Alito thinks so.

So, it turns out that judges equally committed to the view that their only duty is to the rule of law can arrive at dramatically different positions. Something else has to explain why.

Neither Alito nor his colleagues came to the Rybar case with a preferred result in advance. He didn't say to himself, "I'm going to do whatever I can to make sure that Rybar stays out of jail," or even, "I'm going to do whatever I can to strike down this statute."

What Alito had, and what his colleagues had, were ideas about what the Constitution means -- call them "constitutional visions." And, given his constitutional vision, Alito read the legal materials at hand -- the Constitution's text, the Supreme Court's decisions -- one way, while his colleagues, who had a different constitutional vision, read those materials differently.

All three of them, of course, were faithfully adhering to their duty to follow the rule of law.

The senators considering the Alito nomination ought to be trying to figure out what a nominee's constitutional vision is, rather than accepting the uninformative platitude, "The judge's only obligation is to the rule of law." During his confirmation hearings, Clarence Thomas said something similar: that he would approach cases "stripped down like a runner," without preconceptions of any sort. That's absurd. No judge will, or should, think about every constitutional question by going back to constitutional fundamentals in one case after another.

EVERY JUDGE comes to a case with a constitutional vision -- and should. Part of that vision comes from a person's life, which is why senators look at what people have done before they were judges. Of course, a person's views might change some when moving from one job -- representing the U.S. government, for Alito -- to another. But core beliefs rarely change dramatically, so what Alito said about important matters in the past tells us something about what he's likely -- not certain, but likely -- to think over the next several years.

And, frankly, we might start thinking that it's not always bad for a judge to have an "agenda," if we understand that term in the right way. You get a constitutional vision, after all, partly by building from the ground up -- by making an initial, tentative judgment about whether the Constitution allows government to segregate people on the basis of race, or whether the Constitution allows government to prohibit the use of contraceptive devices.

Then you figure out how to fit those tentative judgments into some overall constitutional vision. You'll go back and forth between the individual cases and the constitutional vision, sometimes changing your mind about a particular case if you can't fit it into your constitutional vision as it develops, sometimes tinkering with the constitutional vision to make sure that it gives you the right outcome in cases where your judgment about the right outcome is unshakable.

Every good judge approaches decision-making that way. It's unfortunate that the confirmation process doesn't allow for a serious conversation about competing constitutional visions.

Neither senators nor nominees seem to trust the American people to understand that constitutional law is more complicated than what you can get in a sound bite on the evening news. We can.

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