Samuel Alito has delivered an impressive performance under interrogation, revealing a humility -- and a command of legal matters -- well beyond that of his inquisitors. It was clear that many of those questioning him had little interest in the substance of his answers, particularly since he would not tell senators how he would resolve contentious issues that may come before the court. In response, Sen. Joseph Biden suggested in frustration that the Senate scrap confirmation hearings and simply debate the nominee's decisions as if they were considering legislation.
Mr. Biden's remarks are symptomatic of a larger problem: the assumption that judicial nominees are politicians with policy views that they will -- and should -- impose from the bench. This assumption is most brazenly made when interest groups characterize nominees as "for" or "against" specific policies. Abortion may be the most conspicuous, but groups pressing policy agendas on everything from civil rights and gun control to "family values" and environmental protection are now full participants in judicial nomination battles. The National Association of Manufacturers and the Traditional Values Coalition support Judge Alito's confirmation, while the Brady Center to Prevent Gun Violence and the ACLU do not. Even the National Council on Independent Living has taken a side.
This is not an entirely new phenomenon. In the late 1970s, the National Rifle Association unsuccessfully opposed the confirmation of Abner Mikva to the U.S. Court of Appeals for the D.C. Circuit because of his anti-gun record in Congress. Yet the scale of activist involvement in judicial nominations today is unprecedented. Dozens of organizations have staked out positions on Judge Alito's confirmation based upon their perception of whether a Justice Alito will hamper or help the implementation of their specific policy agenda. It doesn't hurt, too, that a high-profile campaign to block (or support) a Supreme Court nominee is an effective way to raise funds.
For most groups, opposition to Judge Alito is purely result-oriented. Environmentalist groups criticize him for invalidating an Environmental Protection Agency cleanup standard because the agency failed to provide a reasoned explanation for its decision: Yet when courts strike down industry-friendly rules on equivalent grounds the very same groups cheer. The American Progress Action Fund produces a Web site warning of the horrors of "Alito's America" (where the Supreme Court protects machine-gun ownership but strikes down worker-safety laws). Not to be outdone, the Judicial Confirmation Network warns us of an Alito-less America where "drug dealers could freely use children to hide drugs."
Journalists have also treated judicial nominees like political candidates. Several media outlets conducted quantitative analyses of Judge Alito's decisions, detailing how often he held "for" or "against" a given side. Instead of analyzing his reasoning, and the extent to which it adhered to or departed from applicable precedent, the analyses tallied his opinions based upon their results -- such as whether he ruled for or against plaintiffs alleging discrimination, immigrants contesting deportation, or convicted criminals seeking death-row appeals. These analyses, in turn, were relied upon by senators seeking to tar Judge Alito as "for" or "against" given causes.
Setting aside the methodological problems -- such as the failure to account for a representative cross-sample of Judge Alito's opinions, or the makeup of the Third Circuit and its docket -- such analyses are not particularly probative of judicial fitness. Knowing how often a judge ruled for criminal defendants has little instructional value. The relevant question is not who won or lost but whether the judge applied the law in a neutral and consistent manner. Curiously, the Knight-Ridder reporters found such consistency a defect, characterizing Judge Alito's decisions as "so consistent that it appears results do matter to him." Were there evidence that he disregarded precedent or relevant legal doctrines in pursuit of "results," such a charge might have merit, but the various analyses showed nothing of the kind.
Viewing judges as life-tenured politicians who get to impose their own policy preferences furthers the downward spiral of judicial politicization. To be sure, judges themselves are not blameless. The Supreme Court's willingness to inject itself into controversies traditionally resolved by the political branches of government only encourages interest groups to devote resources to shaping the federal bench.
Reversing the trend will be difficult. In today's political climate, to say that the judiciary should not resolve an issue is itself viewed as taking a side. Ironically, the same senators who worry that Judge Alito shows insufficient respect for the political branches are aghast that he might leave some thorny issues for the elected branches to sort out. In Thursday morning's questioning, Sen. Russ Feingold could scarcely believe that some aspects of constitutional separation of powers cannot be resolved by the courts.
To his credit, Judge Alito explained the process he would go through to evaluate various types of cases without committing himself to a given outcome. He exhibited the same qualities before the Senate Judiciary Committee that have so impressed his colleagues and those who have studied his record on the bench. Judge Alito stressed that the process of judging -- the exercise of judgment rather than will -- is more important than a specific result. His testimony was a forthright reminder that not all law is politics in robes.
On the very day Judge Alito's hearings began, Justice John Paul Stevens dissented from a Supreme Court decision in an obscure antitrust case. Although Justice Stevens found the law at issue to be (in the words of Robert Bork) based on a "wholly mistaken economic theory," he stressed his obligation to "adhere to the text of the act." The details of competition policy, the justice understood, are left to elected representatives, even if they will get it wrong. This opinion, joined by Justice Clarence Thomas, should serve as a reminder that judges should apply the law irrespective of the policy result. It is a lesson that the Senate, and the public, should take to heart.
Mr. Adler teaches law at Case Western Reserve University School of Law.
NOTE: Professor Adler is also a member of the Board of Advisors for our Center for Constitutional Jurisprudence.