November 3, 2005

The upcoming hearings will no doubt tell us more and enlighten us less, but then that's the way of Washington. Somehow or another, the entire criteria for accepting or rejecting Supreme Court nominees has come down to abortion. I don’t know how that happened . . . or rather, I do but it still amazes me that the right and left (however you care to define them) just fall apart over this single issue. We ought to get over that, but it’s one of the charming things about America that we don’t.

So, Sam Alito Jr. got the nod this time around and one cannot but wonder what races through a jurist's mind at such a moment. This is the pinnacle of a career, the choice-of-choices, the court-of-courts, the honor of all honors and yet it must be frightening in the extreme. One's entire life snooped through, professionally as well as personally. My life couldn't stand that, perhaps not yours either. Every statement uttered, every decision made combed for hidden meaning, a life turned to tea-leaves in the bottom of a cup. Every day new and supposedly earth-shaking revelations in what had been a mostly sequestered life.

Interesting guy, though. Brilliant, by all accounts and according to anyone who knows him. While brilliant may not be a deal-breaker for presidential candidates, it sure doesn’t hurt when it comes to the big court.

Background is coming out now like handfuls of hair from a dog in the spring and those prejudiced in favor are facing off against those prejudiced against. It’s a wonderful thing to watch the system in its full gnashing and grinding.

I caught an article about the judge’s days as a student and it impressed me. I like student-stories, students are our not-yet-cynical selves on display.

Alito chaired a sixteen-member group convened to make legal recommendations as part of a class project at university. They put together an enthusiastic case for decriminalization of sodomy, charged that the CIA and FBI regularly invaded the privacy of citizens and opined that discrimination against gays in hiring should be forbidden. Strong stuff in the days when students carried strong opinions. Prefacing the document, Alito wrote “We all believe that privacy is too often sacrificed to other values; we all believe that the threat to privacy is steadily and rapidly mounting; we all believe that action must be taken on many fronts now to preserve privacy.”

If what we all believe is a stinging indictment of a wild-eyed conservative that will tip the court against decades of progress in civil-rights and privacy issues, I can live with that possibility.

In a couple of divergent decisions made while he was a member of the Third-Circuit Appellate Court, Alito voted against one allegation of improper disqualification of jurists for racial reasons and upheld a second case. His negative vote in the first instance was in the minority and fellow judges of the majority rebuked his minimizing "the history of discrimination against black jurors."

Judge Alito felt the ‘history of discrimination’ was more a matter for legislators than for judges to legislate from the bench. His second shot at this issue found the opposite, noting that “when a prosecutor used 13 of 14 challenges to strike black jurors, it was reasonable to infer a racial motivation.”

So he found once against and once for, but on legal issues rather than intellectual bias. It would seem intellectual capacity trumps intellectual bias in Judge Alito’s book and I can live with that particularly easily in a nominee.

Clothes are an issue though, as well as suavity. A reporter following the judge's Senate courtesy-calls noted that the judge often forgets to unbutton his suit coat when he sits down and that causes an unsightly rumple. Possibly a fatal flaw has been found in this nominee. Accordingly, his sleeves tend to ride up, his tie to come unanchored and he has been seen with a negligently untied shoelace on occasion. Hmmmm. Sam’s suits are off the rack and it’s rumored the racks they are off of may reside in a basement sales area. Not exactly the sartorial equivalent of John Roberts.

But a robe will cover a multitude of such sins.

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