Alito Says Judges Obligated to Rule of Law, Not Justice

US Supreme Court nominee Samuel Alito, Jr., gave the Senate Judiciary Committee his opening statement on Monday, and it was followed by questioning that went round and round to no apparent purpose. The man is a conservative, he is a perfectly qualified jurist, and he likely deserves confirmation. What is disturbing is his view that “The judge’s only obligation, and it’s a solemn obligation, is to the rule of law.” What of justice?

The anti-Alito crowd, led by Senator Edward Kennedy (D-MA), doesn’t want him on the bench because of his views on abortion, race relations and other factors that are legislative rather than judicial. The left (or what passes in America for the left) made a disastrous grand strategic error years ago in using the courts alone for social policy. This meant they de-emphasized popular elections and winning over the voters. And now all that stands between a woman’s right to an abortion may be one person on the Supreme Court. Compare that to Britain where the same rights came from an Act of Parliament (a private member’s bill by David Steel, now Lord Steel) – the matter isn’t part of the political debate.

What might be fertile ground for refusing Judge Alito Senate confirmation is his apparent enthusiasm for a vigorous executive branch. The Cheney-Bush White House is big on this, and it comes as no surprise. Mr. Bush is a Harvard MBA, and Mr. Cheney was CEO of Halliburton. Their experience and training teaches them that one man at the top with a vision can make things happen. That is the model of virtually all businesses. It is not democratic; it does not permit dissent, and it does not correct course well. Yet, this is what happens when government is run like a business.

The nominee owes the nation some answers in thie regard. Should the president in time of war be allowed to ignore the Fourth Amendment regarding reasonable searches and seizures and the use of warrants? If so, Judge Alito, why? If not, why not? Does the War Powers Act infringe on presidential powers under Article II of the Constitution? Do the Fifth Article of the Universal Declaration of Human Rights which the US and the Eight Amendment to the US constitution prohibit waterboarding and other such treatment of “enemy combatants?” If so, why? If not, why not?

Above all of that, though, is that terrifying “only obligation” to the rule of law. Laws reflect the interests of the rulers; those who make laws never do so in a way that hurts them or their position in society. That is not the same as justice. The rule of law has permitted chattel slavery and segregation in America; in Germany, it allowed the Final Solution; in the USSR, it created the Gulag. With all due respect to Judge Alito, a judge cannot have an obligation only to the rule of law. The enforcement of the law without an eye to justice is tyranny wrapped in a lawyer’s bill.

© Copyright 2006 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent.
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