Scalia, Alito, "Objectivity" and "Activism"

William Saletan has the best summing up of what's wrong with Justice Scalia, and with the broader Constitutional debate that forms the battleground for the culture war. Principles, rules, and even theories of interpretation go straight out the window, even for "originalists", when their personally held political beliefs come into play. "Activist judges" are, essentially, all judges. We just use it to describe those judges we disagree with. No one can rightfully grab the mantle of judicial objectivity.

That, my friends, is why no matter what Judge Alito had to say about stare decisis, he will be, as most judges are, representative of his particular ideology on the court. It is time to be honest about that. All judges are subjective. Occasionally, they are open minded enough to be convinced of something, or change their minds. But they are initially and naturally opinionated and biased toward their own beliefs and the ideology that put them in power. Alito's beliefs happen to be, as I think everyone would agree (including the ultra-right, who are busy high-fiving each other in a yacht club/church basement), somewhere in between Pat Robertson and Rush Limbaugh--except that Alito has a better command of vocabulary and (hopefully) less chemical imbalance.

The only test that should matter, then, when the Senator deliberates on a confirmation, is the following:

Would the people that you represent want this person to be on the court for life where he can subject every decision he makes to an initial ideological smell test? Is that ideology something the broad majority of people I represent support, or at least something that doesn't directly contradict a great many of my values?

Would a Justice Alito, like Justices Scalia and Thomas (and probably Chief Justice Roberts), take value judgments and moral questions that the American people and the rest of the court recognize as complicated and simply declare them settled in the way they prefer to see them settled, using that as a starting point for "strict interpretation" of "original intent"?

Patrick Leahy, quite rightly, has decided Alito would not pass any such test. Bravo. It's nice to dream a little dream that it will matter. Arlen Specter, if he's honest with himself and honest about the role of prejudice in Supreme Court proceedings, would conclude the same thing. If only...

So, let's be honest and drop our infatuation with Latin for a second: stare decisis means bupkis as soon as a Justice has decided he has a Mission to Accomplish. Alito sees himself as another Conservative Crusader, and very soon he'll be part of Bush's Gang of Four who would work to overturn any precedent if they thought it might bring back the halcyon days of the 1950's. Nothing else matters.

(Come to think of it, a President Eisenhower right about now would be refreshing.)