Tuesday, January 31, 2006

Lieberman, Alito and the Consensus

After much cogitation, U.S. Senator Joe Lieberman issued a press release detailing his reasons for voting against Supreme Court nominee Judge Sam Alito. Neither his reasons nor his vote may placate his critics on the left, many of whom are still smarting from his announced support for President George Bush’s Iraq policy.

Lieberman’s anti-Alito vote, one critic noted, is a safe political move that will not arouse antagonism within the pro-choice crowd: “Having the anti-war crowd upset is one thing but Lieberman would have set off a firestorm of anger in the state if he voted for the guy who will vote to overturn Roe v. Wade.” Liberals called upon Lieberman to join in a filibuster recommended by former Vice President Al Gore, a truer test of the senator’s resolve since his vote could not block Alito’s confirmation in the senate.

According to Lieberman’s press release, Alito failed to pass a four point test. Lieberman gave Alito a star on three points -- intellect and ability, experience and character – but problems arose with the judge’s judicial philosophy. Lieberman’s doubts are anchored in Alito’s judicial judgments and not merely in his performance before the Judiciary Committee.

“Based on his personal statements during the 1980s when he was a government attorney, and particularly on his 15 years of judicial opinions,” Lieberman said, “I am left with profound concerns that Judge Alito would diminish the Supreme Court’s role as the ultimate guarantor of individual liberty in our country. This is not about a single issue but about an accumulation of his opinions that leads me to a preponderance of doubts.”

Lieberman’s principal objection to Alito revolved around his refusal to say that the 1965 Supreme Court decision in Rove v Wade was “settled law” – Alito said it was settled precedent -- though the judge had agreed that the 1965 decision of Griswold v Connecticut was settled law. Lieberman went on to say, “I personally believe that Roe achieved a just balance of rights and reflected a societal consensus that has continued and deepened in our country for more than three decades. I was left with serious concerns that Judge Alito would not uphold the basic tenets of Roe and that is a very troubling conclusion.”

Far from “reflecting a societal consensus,” Roe v Wade was a tinderbox decision that some legal scholars believe was poorly arrived at. Years after the decision, abortion remains a tinderbox issue, largely owing to the intervention of the court in a matter that, some scholars believe, should have been left to state legislatures. Even liberal scholars who support abortion quibble with the Roe v Wade decision.

The expression “settled law” is a phrase more ambiguous than it seems at first sight. Even as settled law, Roe v Wade need not present an obstacle to states that wish to upset the prevailing consensus among arch liberal senators that any and every form of abortion should be permitted. Roe v Wade certainly has not produced societal consensus within orthodox Catholicism or Judaism, and the excommunication in Oct. 2000 of Lieberman by a rabbinical court in Brooklyn – owing, in part, to Lieberman’s votes on partial birth abortion -- may be taken as an indication of the degree to which Roe v Wade is incapable of producing a societal consensus.

The slings and arrows directed at Supreme Court justices since Roe v Wade – ironically by senators – is directly related to court interventions that may not have been necessary had senators been courageous enough to pass legislation they now want courts to affirm through judicial decisions. These decisions cannot produce a consensus because in democracies the governed will not consent to be governed by autocratic judges. And governments that do not have the consent of the people are constitutionally illegitimate.

What one wants desperately in Supreme Court Justices is modesty combined with a settled judgment that the court must operate within the constraints of the constitution. In this regard, barring serious objections from Lieberman, the following statement by Supreme Court Justice Sam Alito is a hopeful portent: “Our constitutional system relies heavily on the judiciary to restrain itself. To do this, judges must engage in a continual process of self- questioning about the way in which they are performing the responsibilities of their offices," he continued. "Judges must also have faith that the cause of justice in the long run is best served if they scrupulously heed the limits of their role rather than transgressing those limits in an effort to achieve a desired result in a particular case."

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