The Senate’s rejection of Supreme Court nominee Robert Bork in 1987 has sent the wrong message to nearly every prospective justice since then. Just ask Samuel Alito LAW ’75. But don’t expect a substantive answer.
Senate confirmation hearings for judicial nominees have nearly become a farcical exercise in getting nothing done while simultaneously ensuring that all involved parties get sufficient face time on C-SPAN. The problem with these hearings, and with the nomination process in general, stems from the one characteristic that no effective judiciary can relinquish: its independence.
The Constitution, and subsequent rulings by the Marshall Court, established the judicial branch as an independent and essential third arm of the federal government. The Supreme Court has remained independent for more than 200 years, through Franklin Delano Roosevelt’s court-packing schemes and the recent right-wing attack on “activist judges.” But, as a consequence, the American public has lost its ability to learn anything of value about people whose lifetime appointments virtually ensure a lasting impact on American jurisprudence.
Without fail, a nominee who wants to gain a seat on the bench need only avoid the trap that claimed Bork: candor. Look at Clarence Thomas. Despite the Anita Hill scandal and his failure to receive a rating of “well-qualified” from the American Bar Association, Thomas was (narrowly) confirmed. He claimed during his hearings that “I have no agenda,” but his subsequent court record seems to contradict that claim.
The problem with the nomination process is that a sitting judge cannot be held to his inevitable promise of considered, rational neutrality. John Roberts promised to be an “umpire” on the Supreme Court. But if he decides to lead as an advocate, he will do so with impunity. Upon confirmation, the Supreme Court justice becomes a unique animal in American politics, an entity above — and immune to — the political system. A justice is subject to no election, no reappointments, no performance reviews. He cannot be held to the promises he makes during confirmation hearings. He represents both the best and the worst elements of America’s fiercely independent judiciary: best because his rulings can transcend political whims, worst because he is restrained only by the limits of his own interpretation of the Constitution. As Justice Thomas has shown, one’s own constitutional interpretations are hardly a barrier to pursuing an activist agenda.
I can’t help but feel deceived by Mr. Alito’s performance during his hearings. We know that he has written some inflammatory memos during his judicial career, and because he is a Bush nominee, one expects that he will be a conservative justice. When he refuses to give specific views on Roe v. Wade, he denies the Senate (and the American people) the information needed to make the decision on whether or not to entrust him with a lifetime appointment to one of the most powerful seats in the land.
The Senate cannot allow itself to rubber-stamp unknown nominees who dodge questions and refuse to reveal their views. If the Senate, after the hearings, lacks a sufficient idea of what kind of justice Mr. Alito will be, it should have no choice but to reject his nomination. We’ve learned the wrong lessons from Bork. This country cannot afford another justice who promises neutrality and delivers activism.
Xan White is a freshman in Calhoun College.