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The Rule of Law and the Role of Judges—Why the Nomination of Samuel Alito Matters

“One of the indispensable matters of Western Civilization is the rule of law. That rule is central to democratic government, a vigorous economy, and individual liberty.” With those words, Judge Robert H. Bork affirms the rule of law–and points to the important role played by judges. The rule of law, he argues, “requires that the law be understood to have force and moral weight of its own, independent of the political and cultural struggles of the moment.” That is another way of saying that the rule of law, when it is observed, guarantees the supremacy of process in political affairs; self-government, stability, and safety depend on that supremacy.

Judge Bork’s warning–reminding us of the importance of the rule of law–should serve to underline the importance of the nomination of Judge Samuel A. Alito, Jr. to the United States Supreme Court.

Judge Alito brings to his nomination a distinguished career in the law and years of experience on the federal bench. In making his nomination, President George W. Bush stated: “As a Justice Department official, federal prosecutor and judge on the United States Court of Appeals, Sam Alito has shown a mastery of the law, a deep commitment to justice, . . . and he is a man of enormous character. He’s scholarly, fair-minded and principled, and these qualities will serve our nation well on the highest court of the land.”

Those who knew Sam Alito as a boy likely were surprised when he was nominated to the nation’s highest court. After all, he had dreamed of becoming a professional baseball player only to choose the law as his vocation. The son of an Italian immigrant who came to America as a boy and later became director of the New Jersey Office of Legislative Services, young Samuel Alito was given the name of his late father, whom he counts as his own hero. Judge Alito’s mother, Rose, age ninety, had served as principal of a New Jersey elementary school.

As a boy, Sam Alito’s dreams may have been directed at baseball, but he quickly established a reputation for academic excellence as well. He was to serve as valedictorian of his high school class and later earned a baccalaureate degree at Princeton University. Just three years later, he received his law degree from Yale University, and then moved to a series of government appointments in Washington.

President George H. W. Bush appointed Alito to the Third Circuit of the U. S. Court of Appeals in 1990. He was later confirmed by a unanimous voice vote in the Senate.

In accepting President Bush’s nomination, Judge Alito was mindful of his decade and a half as a federal judge: “Every time that I have entered the courtroom during the past 15 years, I have been mindful of the solemn responsibility that goes with service as a federal judge. Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system. And I pledge that if confirmed I will do everything within my power to fulfill that responsibility.”

With those words, Judge Alito signaled his understanding of the judiciary and the role of judges. In doing so, he knew full well that this is the very issue around which controversy emerges every time a nomination is made to the Supreme Court.

Over the last several decades, the Supreme Court has assumed a role never envisioned by the founders of the American republic. Forfeiting the principle of judicial restraint, generations of activist judges have pushed a social agenda that, in their minds, would bring America into the modern age. Of course, the framers of the U. S. Constitution did not conceive of judges as legislators who would press their own agenda. To the contrary, the founders envisioned the Supreme Court as a final court of appeal, described as the “least dangerous branch” of government.

Phyllis Schlafly, a keen observer of the court, has warned that a cadre of judicial “supremacists” has used the federal courts to transform the culture. “The United States Constitution did not create judicial supremacy or consign us to be ruled by a judicial oligarchy,” Mrs. Schlafly insists. “On the contrary, the Constitution separated the vast powers of the federal government into three branches–legislative, executive, and judicial–with an ingenious system of checks and balances so that each branch can serve as a continuing check on the others.” Judicial activists understand the role of judges very differently. As Mrs. Schlafly explains, “The judicial supremacists refuse to be bound by the words of the United States Constitution or the intent of its Framers. Instead, they espouse the theory that the Constitution is a ‘living document’ which can change according to judicially directed ‘evolution.’”

Similarly, Robert H. Bork argues that “the law has become the instrument of the intellectual classes that are opposed to middle class values and hold America in contempt.” In recent years, Americans have been frustrated to see the federal courts, and especially the U. S. Supreme Court, reverse the will of the people as enacted through Congress, state legislatures, and voter initiatives.

For example, a measure adopted in the state of Colorado that held that special rights are not to be granted to any group on the basis of sexual orientation was later ruled unconstitutional by the Supreme Court, even though the measure was overwhelmingly approved by the people of Colorado. Similarly, constitutional amendments adopted in several states intended to protect marriage and to prevent the recognition of same-sex marriages are threatened by activist courts who may well seize the opportunity once again to reject the will of the people.

Over the last half century, forces pushing for a revolution in America’s social and cultural landscape have been largely unable to gain success through legislative action. They simply lack popular support for their proposals and have been thwarted in their efforts to force their revolution through popular politics. For example, pro-abortion forces would never have been able to force a legal authorization for virtually unrestricted abortion in all fifty states through legislative action. The only way they could force this agenda was to do so through judicial action, and activist judges responded with a cavalcade of invented rights and social policies.

In 1973, the U. S. Supreme Court declared abortion to be a constitutional right, even as the justices had to admit that no such right was even mentioned in the U. S. Constitution. Just a few years before this, the justices had found the constitutional “right to privacy” on the issue of contraception.

Fast forward thirty years, and the nation’s high court would strike down laws against sodomy and homosexual behavior, declaring that such laws violate the U. S. Constitution. The nation’s courts have invented liberties and interpreted the Constitution according to their own political predilections.

Thus, when Judge Alito spoke of his own commitment to restraint and “the limited role that the courts play in our constitutional system,” he was affirming his more limited and restrained understanding of the judicial role. Just months earlier, John Roberts, now Chief Justice of the U. S. Supreme Court, made a similar point in referring to the role of judges as “umpires” rather than players in the context of politics.

Justice Antonin Scalia once asked: “What secret knowledge, one must wonder, is breathed into lawyers when they become justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years is in fact unconstitutional?” Reviewing the activist decisions handed down by his own colleagues, Scalia argued that the Supreme Court “is busy designing a Constitution for a country I do not recognize.” Once again, this affirms why Americans should demand judicial nominees who will understand the limited role of the courts and will resist siren calls to legislate and press social agendas from the bench. Even as legal theorists and other justices refer to “evolving standards of decency” and the needs of the Constitution to “grow” with the nation, justices must understand that they are to interpret the Constitution as it is, not as they would wish for it to be.

After decades of liberal decisions that have served as landmarks for what they see as social progress, many now demand “moderate” judges as nominees to the nation’s highest court. Some senators have insisted that they will accept and confirm only “mainstream” judges who will accept decisions such as Roe v. Wade and Lawrence v. Texas as “settled law” or “superprecedents” that are beyond further judicial review.

Justice Scalia wonders what such senators are thinking. “Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?”

The actual text of the Constitution must control judicial interpretation. Justices who seek to justify their judicial activism by supposedly discovering a “penumbra” of hidden rights within the Constitution do this nation a disservice and threaten the delicate balance of power that the founders of this nation saw as indispensable to the nation’s health and individual liberty.

The nomination hearings for Judge Alito before the Senate Committee on the Judiciary will begin soon after the first of the year. Look for a lively and potentially contentious series of hearings, but expect Judge Alito to acquit himself well as he describes to the senators–and to the watching nation–his understanding of the judiciary and the judge’s role.

Edward Whelan, president of the Ethics and Public Policy Center, makes the case for Judge Alito’s swift and overwhelming confirmation. “For starters, Alito is a spectacularly well-qualified nominee–among the best-qualified ever. In the Reagan administration, he briefed and argued cases before the Supreme Court and then served as a deputy in the Office of Legal Counsel–the office in the Justice Department, previously headed by [the late Chief Justice William] Rehnquist and [Justice Antonin] Scalia that advises the White House on difficult questions involving the Constitution and other federal law. His years as a federal prosecutor, first as a young lawyer and later as a U. S. Attorney, give him an invaluable real-world understanding of criminal-law enforcement. And he has been a federal appellate judge for 15 years. In all these capacities, Alito has shined.”

As the nation’s highest court, the U. S. Supreme Court fulfills an indispensable purpose in our national government. The future of this nation will be influenced by those who sit on this court and protect the proper role of the judiciary while honoring the rule of law. For these reasons, we should encourage the United States Senate to confirm Judge Samuel A. Alito, Jr. quickly and enthusiastically. We need to get this umpire in the game.