Slate’s commentary on Alito’s confirmation hearing’s third day gets pretty close to my concerns with this nominee. Specifically Alito appears to have the belief that he should look at every last issue with a complete fresh open mind. Sounds good at first, but it quickly becomes worrysome. People don’t like change, and when only a case like Brown v. Board of Education is a settled matter to Alito, there is alot of room for change. This lack of deference to the past is exactly what causes much of the desire for constitutional originalism from thoose around me. It’s when the courts seem to create something completely new that seem to be at the heart of every conservative complained about judicial decision. Alito’s lack of deference points that he is going to be a very much an activist judge, which is exactly the reason he was nominated. The difference is that he’ll be activist to a different set of beliefs. So what are the specified beliefs? At one point Alito talks about traditional values, about safe neighborhoods and preventing your children from getting exposed to values and beliefs that you don’t agree with. Stuff that sounds good on the surface but then one can recall some of the more racist and ugly beliefs that can hide underneath such a noble veneer.
Even more then that there are a couple things I worry about with his philiosophy. First there is the implict implication that a judge can shake off thier implicit biases when interpreting law. This does not seem likely to me, but it’s amazing that conservatives claim to believe it so wholehartily after so often critizing the media which strives for the same thing. Second, if all a judge is, is the execution of something as mechanical as a program, then as a programmer and tester I am doubly scared. There are bugs in code, and the law is exactly that, code. I expect the judicial system as a human sanity check and part of the system to make sure that we don’t end up with insane outcomes. In the end for a judge, the law matters, but so does the person. The attempt to remove the person and this extra and important role from the judicial process isn’t healthy.