scruples

I think this case should be made against Judge Samuel Alito.

A judge with a philosophy of rigorous, rigid adherence to a narrow reading of the law...a philosophy that led him to write decisions that deliberately and repeatedly isolated him from his fellow judges...is NOT the kind of justice we need on the Supreme Court right now.

Alito's supporters claim for him as a leading virtue his scrupulous pursuit of the narrow meaning of the law even though that "scrupulous pursuit" led him to write opinions that reflect more a personal hermeticism than a broad judicial temperment. In effect, Alito's rigid narrowness seems not so much a virtue but a kind of priveleged and self reflexive viewpoint from which he interprets the law with results conservatives love. In a nutshell, Alito is wholly legalistic, and to ideological ends, when what most Americans seek in a Supreme Court Justice is a humane intelligence and wisdom.

This can be seen in Alito's writing on family. Alito's focus, when he writes on family, is on the very specifically defined legal history and structure of traditional marriage to the exclusion of all else. Alito's writings simply exclude the large percentage of adults and children in this country for whom "marriage" was never a part of their "family." Following a pattern, Alito rigidly cuts himself off. He takes a narrow stance. Alito may be, in the judgment of his ideological peers and colleagues, "right on the law"...but that correctness is just so wrong...both legally, on its merits, and, as an appropriate judicial philosophy for our nation at this point in time.

How can one be a great Supreme Court Justice...someone who must understand, and seek to understand, our society...if one sees the law as a ruler that rigidly draws lines that divide us and impose themselves upon us? A great justice sees the law as a broad instrument in service of the people whose consent it draws its legitimacy from. A great justice knows that the law arises from us and serves us, the law bends us to its virtues and protects us, what it can do, even as it's interpreters seek to understand the consequences and limitations of the law, or what it can't or shouldn't do.

Judge Alito is praised for his scrupulousness. His rigid adherence to narrow lines of analysis. Where is his understanding of context, and consensus and community?

Context is important. As my father pointed out to me, how scrupulous can Judge Alito be if he is accepting the nomination of George W. Bush knowing what we all know today? How rigid, strict and morally upright can he be to accept this nomination in this context...from a President who is using him and his record as a political cudgel to the left and a bone to the right?

Samuel Alito, a talented and brilliant judge and scholar, may be "right wing", but he is simply not right for the Supreme Court or for America. That must be said. There is no shame in voting against his confirmation and demanding a judge with a temperment and reading of the law more suited to the tenor of our times.

At the end of the day, we are allowed our scruples too. We should demand a Justice for all the people, from the judicial mainstream, but with a broad understanding of the uses and limits of the law. In my view there is no shame in demanding a woman with these qualities, and rejecting the nomination of Samuel Alito.

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