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Alito's Confirmation is Not an Election By: Orrin Hatch
TheHill.com | Friday, December 09, 2005

A great deal is at stake in the upcoming Judiciary Committee hearing on the nomination of Judge Samuel Alito and too often political trees have obscured the judicial forest.

Preserving self-government and the rule of law — pillars of the freedom we enjoy in America — require remembering some important principles and following some basic rules as the Senate completes the confirmation process.

The first principle is that, in the judicial selection process, the Senate and the president have different roles. The Constitution assigns both nomination and appointment of judges to the president. The Senate’s role of “advice and consent” is a check on the president’s appointment power, not a substitute for it. This role requires that judicial nominations reaching the Senate floor should receive an up-or-down vote.

The second principle is that, in our system of government, the judicial and legislative branches have different roles. Students learn in junior high school civics class that the legislature makes law while the judiciary interprets law; making and interpreting law are two different things. Allowing the judiciary to cross the line, no matter what results it delivers, imposes decisions upon the people that they did not choose for themselves, undermining the very freedom that comes with self-government.

Remembering these principles should lead the Senate to complete the confirmation process by following three basic rules. The first is to consider each part of Judge Alito’s record in its own context, for what it actually is.

In 1985, for example, Judge Alito wrote a memo suggesting how the pro-life Reagan administration could participate in an abortion-related case before the Supreme Court. He wrote that memo in his role as assistant to the solicitor general and did so for a particular purpose.

Some are arguing that if he addressed the abortion issue in that role for that purpose, he will necessarily do so the same way in a judicial role for a judicial purpose. This argument, driven by a political agenda, misleads our fellow citizens about what judges are supposed to do.

The second basic rule is to consider Judge Alito’s entire record. Some interest groups or media outlets try to make front-page apocalyptic news out of a few sentences in a 20-year-old job application or membership in a long-defunct group in which Judge Alito never participated. They focus on the result of a judicial decision while ignoring the law, the facts and the reasoning of that decision. Or they focus on a few of Judge Alito’s hundreds of written opinions while ignoring the rest. This political selectivity misleads our fellow citizens about who Judge Alito really is.

The third and probably most important, basic rule is to apply a judicial rather than a political standard to whatever information we have about Judge Alito. The principle that judges and legislators are and must remain fundamentally different defines the judicial job description. Applying a judicial standard requires that every part of the appointment process must keep that job description in mind. This includes the information we seek, the questions we ask and the criteria we use in deciding how to vote.

Judges apply law made by others to settle legal disputes. They are not supposed to run the country, define the culture or pursue a political agenda. Judges must decide cases, not champion causes. As such, the Senate should not evaluate judicial nominees by demanding whose side they will be on in certain cases or how they will decide cases on certain issues or by using ideological, results-oriented litmus tests. Insisting that the political ends justify the judicial means may be tempting, but freedom demands that the way we reach those ends is as important as the ends themselves. Judges must stick to settling legal disputes and leave the politics and the law-making, to those elected by the people.

The confirmation process will tell us about more than Judge Alito’s qualifications. How we approach this nomination will determine whether we advance the cause of self-government and the rule of law or further politicize the judicial system. The Senate must remember these principles and follow these rules as we decide whether to recommend Judge Alito’s appointment.

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Orrin Hatch is the senior Republican U.S. Senator from the state of Utah.

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