On January 9, the Senate will begin confirmation hearings on the nomination of Judge Samuel Alito for associate justice of the United States Supreme Court. Judge Alito deserves a fair and dignified process, including respectful hearings and an up-or-down vote, expected January 20.
He is one of the most knowledgeable and qualified Supreme Court nominees ever, having more judicial experience than any Supreme Court nominee in 70 years. His distinguished legal career includes 29 years as a public servant and 15 years on the Third Circuit Court of Appeals. Given his unquestionable qualifications, the most important issue to consider is his judicial philosophy—what is Judge Alito’s approach to the law? I subscribe to the philosophy of judicial restraint, the notion that judges have a limited role in our democracy. Their job is to strictly interpret the Constitution and the law, not to legislate from the bench.
Courts have limited authority under the Constitution—legislatures make law; courts interpret the law. It is important to protect the independence of the judiciary to ensure equal justice for all Americans. At the same time—to preserve the democracy, rights, and freedoms we hold dear—it is important that we protect the separation of powers among the branches of government.
It is not good for America to have judges who are advocates, pursuing an ideological campaign from the bench—whether liberal or conservative. Judges who make law from the bench arrogantly ignore existing law in order to advance a personal political agenda. They pre-judge issues and cases to achieve a desired result. What America needs is more judges who are committed to the rule of law and who decide each case on the merits, carefully and impartially.
We do not need more judges like the majority on the Ninth Circuit, whose idea of freedom is to forbid a schoolteacher from giving students the choice to recite the pledge of allegiance in class. Or like the majority on the Federal District Court of Nebraska, whose idea of democracy is to hold that states may not pass laws defining marriage as a union between a man and a woman.
From my review of Judge Alito’s record to date, it appears that he holds a judicial philosophy that recognizes the properly restrained role of a judge in a democratic society. He said in his 1990 Senate Judiciary Committee questionnaire for his nomination to the Third Circuit: “The judiciary should be careful not to usurp the rightful powers of the other branches of the federal government or those of the states and their subdivisions, for ultimately the separation and distribution of government powers is one of the most important safeguards of freedom under our Constitution.”
When I met with the nominee, I was impressed by his modesty and respect for precedent and the Constitution. He understands that judges are not advocates on an ideological campaign, but servants of the law. His court opinions show that he applies statutes without bias. He is neither pro-plaintiff nor pro-defendant. He rejects the notion that it is ever acceptable “to import a judge’s own view of the law in the law that should be applied [to a] case.”
Judge Alito applies the law fairly and faithfully, even if it leads him to results that are not popular. He has sided with the “little guy” in many rulings, on issues including civil rights, consumer protection, immigration, criminal defendants, and the death penalty. Conservative and liberal legal heavyweights respect Judge Alito as a fair-minded, careful, and independent judge. I look forward to learning more about his judicial philosophy in the hearings and to participating in a timely, up-or-down vote on the Senate floor.