This stonewalling strategy works. Judge Samuel Alito’s performance was particularly evasive, but his lack of candor made his confirmation inevitable. If he had revealed the opinions he actually holds about what rights the Constitution protects, he might well have been defeated. But he provided no headlines that would alert Americans to the very real danger that he will join the legal revolution that right-wing administrations, think tanks, judges, and justices have been planning for decades.
Chief Justice John Roberts, in his own hearings last fall, offered little more substance than Alito has; he apparently persuaded the several Democratic senators who voted for him that he would prove to be a moderate rather than a right-wing justice. It seems likely that Alito will now provide a dependable fourth vote to form a right-wing bloc that will have a great impact on constitutional law for a very long time. But his performance before the Senate, like Roberts’s, gave the public no warning of this and therefore no chance to object. Democratic senators appear likely to vote solidly against Alito because they think they know what he actually stands for. But the result of his steadfast silence means that they have little chance of creating popular support for a filibuster to defeat him.
In my view, future nominees can be discouraged from such evasion only if there is a change in the public’s understanding of the function of the confirmation hearings and of the nominees’ moral responsibilities in those hearings. Enough people must be persuaded that the hearings are not a game of hide-and-seek and that a nominee who fails to be candid is morally culpable. It would be helpful to that end if the chairman of the Senate committee (or the ranking member of the other party) were to explain in his opening statement that the committee accepts without further reassurance that the nominee intends to abide by the law and will apply what he believes to be the general principles that underlie the Constitution rather than try to invent new ones.
He should then add that he and the committee are well aware that lawyers disagree about what these principles are, and how they should be identified, and that the committee is therefore anxious to know the nominee’s answers to these controversial questions of principle. Perhaps the public can somehow be persuaded that a nominee’s failure to answer those substantive questions candidly would justify—indeed force—senators of both parties to vote against his confirmation. That may sound unlikely, but it is hard to see what else could save the constitutional process from irrelevance.
Many lawyers think that the change I propose would be a change for the worse …
'The Strange Case of Justice Alito': An Exchange April 6, 2006