The fact that Sam Alito spent all week stonewalling was to be expected, but I think some of the Democrats on the Judiciary Committee deserve equal blame for treating this more like political theater than a job interview. I understand getting a soundbite is part of the shallow hell that our political climate has become, but a lot of the exchanges makes it clear that most of the Democrats think they’re a tough question away from getting Alito to blurt out some incriminating remark like “Abortion is worse than the holocaust” or “the President should be considered a monarch”. But I fear that the hunt for a smoking gun is coming at the expense of helping the American people figure out who the hell this Alito guy is.
Here’s the thing the American people (and most of the Senate) don’t seem to understand about confirmation hearings. It’s not about finding out what Alito thinks, but how he thinks. The conclusions that Alito has reached on a litany of issues are ultimately less important that the thought process that led to those conclusions. Since we can’t predict the future and it would be highly inappropriate to demand promises from a potential Supreme Court justice, the best we can do is try to figure out how this guy’s brain is wired. What sort of arguments is Alito open to? What roles to emotion, religious belief, or intellectual curiosity play in Alito’s judgment? Is he more motivated to side with experts or laymen? Interpreting the law isn’t a mechanical process, it’s an art. We just want to see what kind of artist Alito would be.
Of course, that just leads us back to the original problem, that Alito isn’t man enough to publicly stand by his own words. Even when we look at these hearings in the proper light and don’t just consider them a laundry list of litmus tests, the best way to get familiar with the way Alito evaluates arguments is to ask him about controversial issues. Not because it’s a cheap way to get him to pick sides, but because high-profile, controversial issues have a wealth of commentary on which to refer, are easier for the American people to understand than obscure constitutional provisions, and serve as a pretty good introduction to what sorts of things are likely to sway a Justice Alito.
For example, taking aside every potential court case, what sorts of conclusions could you draw from a revelation that Alito supports the teaching of intelligent design in science classes? For me, I’d conclude that he’s unable tell the difference between science and pseudoscience, that he’s willing to stretch the idea of presenting “all sides of an issue” to ridiculous extremes, that he’s willing to make broad decisions without being fully informed about the issue(s) involved, and that he might be the kind of judge who would let his religious beliefs get in the way of making logical decisions. Since these would be ample subjects for followup questions, I wouldn’t just settle on those impressions of Alito, but I’m only speaking hypothetically at this point. In reality, Alito would have avoided answered the first question completely through the sort of dissembling Alito’s biggest defenders used to call “Clintonian”.
That, to me, is the most paradoxical thing about this whole judicial confirmation kabuki dance. On the one hand, we’re supposed to believe that Alito is a top-notch intellectual giant, but he’s so uninformed about the most controversial issues of our time that he can’t be bothered to form an opinion. Alito’s a neutral “referee” who’s willing to listen to both sides before making up his mind, but he’s so weak-willed that taking any stand at all would limit his ability to be even-handed in future cases. I don’t know which is worse : Republicans insulting our intelligence by playing dumb, or taking them at their word that and accepting the notion that their best pick for the high court is a habitual liar who’s too stupid to remember things he did and said 20 years ago.