Wednesday, January 11, 2006

Impartiality Revisited

It's Supreme Court nominee hearing time again! This time, it is Samuel Alito who is answering questions from the Senate. When John Roberts was in this position, I commented on the need for impartiality, and my desire that some conservative would acknowledge that such is not entirely possible. One certainly must make every effort to be as impartial as possible, but at some point, one's experiences or opinions must influence the justice's position.

Although current Supreme Court nominee Samuel Alito is making arguments similar to now-Chief Justice Roberts that one must be impartial (seeming to imply that total impartiality is possible if only one tries hard enough), during questioning by Republican Senator Orrin Hatch yesterday morning, Alito had these comments:

...although the judiciary has a very important role to play, it's a limited role. It is not -- it should always be asking itself whether it is straying over the bounds, whether it's invading the authority of the legislature, for example, whether it is making policy judgments rather than interpreting the law.

And that has to be a constant process of reexamination on the part of the judges. And that's the role that the judiciary should play.

This language of "constant process of reexamination" is very much the kind of thing I want to see. It doesn't go as far as I'd like in saying that a person's opinions influence how one thinks about certain matters, but it's not realistic to expect that Alito and I would entirely agree on this issue (he is, after all, a staunch conservative, while I lean somewhat further to the left). But at least he acknowledges that positions must be "constantly reexamined" lest they "stray over the bounds" of what it is appropriate for the Court to do.

Then, this morning, Alito had this to say in response to a question from Senator Tom Coburn:
...when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

Although Alito still contends that a judge can (and should) be totally impartial, he admits that one "can't help" but think of experiences that may connect to a case before him. And what does it mean to "take that into account" when he talks about remembering how people in his own family suffered discrimination in the past, if it is not to say that such remembering influences, in some way, his potential judgment? This seems to be a disconnect to me.

No one (to my knowledge) has asked Alito this, but I'd like to hear someone ask him: if judges are supposed to be so completely impartial, then why do certain kinds of decisions so regularly come to split decisions along the same voting lines? Usually the same 4 justices vote one way, while the other 5 justices vote another. If it's possible to be completely impartial, and we affirm (as Alito is usually careful to do) that the current justices do their jobs well, why don't the split votes at least split along different justices more regularly?

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