Democrat: Alito Won't 'Chisel Away' Law

The Washington Post ^ | 11/02/2005 | Jesse J. Holland (AP)

[NapkinUser]

WASHINGTON -- A centrist Democratic senator complimented Supreme Court nominee Samuel Alito Wednesday as a jurist who won't "hammer away and chisel away" existing law.

While Sen. Ben Nelson did not endorse President Bush's latest nominee for the high court, he did say he was impressed by what he heard from Alito during his introductory visit.

The Nebraska Democrat, who was Alito's first senatorial host Wednesday, told reporters that he got assurances that Alito would not be "judicial activist" or "take an agenda to the bench" if confirmed to succeed Associate Justice Sandra Day O'Connor, who is retiring.

[mosquitobite]

Dems in solid red state are already running scared! ;)

[new yorker 77]

Both Nelsons will lose their Senaye seats in 2006.

[new yorker 77]

I meant to say Senate seats.

[msnimje]

I have a new theory for SCOTUS nominees from Republican Presidents.

Since the Dems do not operate in good faith with these nominees, I say they should just tell the Senators whatever they want to hear so they can get confirmed.
This nomination process is degrading and outrageous and means nothing.

[zendari]

Are you suggesting lying (under oath, presumably) to the judiciary committee?

[msnimje]

Nope, but to play the Senators own game of saying nothing while using lots of words. Obfuscation.

[Tom D.]

The Ginsburg tack of refusing to say how she will rule on any case is the only position that any nominee can legitimately take in these hearings. There are at least two reasons for this. One is Constitutional and the other is practical.

As to the Constitutional reason: One interesting issue in Roe v. Wade that is not widely appreciated, but that is discussed in law schools is whether the Supreme Court had a right under the Constitution to hear the case at all. The Constitution says that federal courts can only hear cases and controversies. In other words, there has to be a real, ongoing dispute. In Roe v. Wade, the child had been born well before it got to the Supreme Court. There was a strong argument that after the child was born, the issue was moot because Ms. Roe could not have an abortion irrespective of the Court's opinion. Since the issue as to this plaintiff was moot, there was no more case or controversy and the Supreme Court had no jurisdiction to hear the case. The Supremes decided in Roe v. Wade that there are situations that need to be decided and that because of the inherent delays with any Supreme Court Case they would never be decided if the Court did not wink at the mootness of the issue.

Now back to why there are Constitutional reasons as to why potential Justices should not say how they will rule on any case: If the Supreme Court has no jurisdiction to rule in cases where there is a moot issue or where there is no pending issue, the individual potential justices cannot rule unless there is a real case before them. In other words, the parts have no jurisdiction that the whole lacks.

As to the practical reason: A justice cannot possibly rule without hearing specific arguments on both sides without doing two things that no judge should do: 1) think that he can anticipate every argument that might possibly be made and no one is smart enough to do that; and, 2) to deprive a party of due process by ruling without an opportunity for that party to be heard. Both practical objections have some overlap, but they are not the same.