Friday, December 02, 2005

Alito Assures Specter on Abortion View

Why does he keep saying that about personal views?

Supreme Court nominee Alito, when confronted with evidence of his views on issues like abortion keeps saying that personal views are not a part of what judges should do. Why is that his response and what does it mean?

Let me give you a simple version of the explanation. For over seven hundred years Anglo-American courts believed their job was to discover the pre-existing law, and apply it to individual cases before the court. In the 1800's some influential writers suggested that the courts actually made law rather than discovering and applying it. In the 1900's the idea that courts made law became common among law professors. Today there are actually judges who believe, or act as though they believe, that it is their job to make up the law as they go. They do pay some respect to statutes and precedents, but only when it fits into their own views or is necessary to maintain a veneer of legitimacy. The same judges seem to be guided in making law, not by timeless moral principles, but by the popular fads of thought in the cultural elites they either belong to or hope to belong to.

Thankfully not all judges are like that. Many still try to discover and apply the law as best they can. Judge Alito's remarks are undoubtedly meant to assure us that he belongs to the set of judges who believe their job is to follow the law, not make it. But that still leaves a large and important question unanswered. What does judge Alito consider the law to be? How does he define it? How does he find it? What does he do in the absence of a controlling precedent or statute? Where does he find "rights" to be recognized by the courts? Are some rights unalienable? Which rights are permanent and which can be removed or set aside? What is the hierarchy of rights when they conflict? Has the Supreme court created rights that are not real rights or that violate other rights higher in a hierarchy of rights?

These are the sorts of questions the Senate should ask nominees. I future posts we will discuss possible answers to such questions. Not following personal views is a good start for a judge. But what should he follow? How can he find "the law?" That is what we must know.

1 comment:

Doug E. said...

This sounds very interesting. If our interpretation of the law is somewhat derived from our personal presuppositions, how can we separate our interpretation from our personal views?