UNANSWERED QUESTIONS.(The Talk of the Town)(judges, judgments, politics)

Richard A. Posner, the Chicago judge and conservative polymath, recently made a revealing confession in the pages of the Harvard Law Review. Of the 2004-05 Supreme Court term, he wrote, "Almost a quarter century as a federal appellate judge has convinced me it is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly." This was because the most important pronouncements of the Court were invariably political in nature, rather than strictly legal. Constitutional cases, Posner asserted, "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms." The Justices, guided only by the majestic generalities of the Constitution, and the malleable (and sometimes disposable) precedents of the Court itself, enjoy a degree of authority and freedom of action that is without parallel in our system of government. Some of the issues addressed during the term that Posner reviewed make his point nicely. Does the Constitution permit the execution of murderers under the age of eighteen? May local governments take private property through eminent domain and transfer it to other private owners? Where and how may the Ten Commandments be displayed on government property without amounting to establishment of a state religion? To such questions, conscience, not competence, dictates the answers.

At the confirmation hearings for Samuel A. Alito, Jr., last week, there was little mystery about his political views early in his legal career. He spent most of the Reagan years as a zealous advocate in a fiercely ideological Department of Justice. In a now famous application for a promotion, in 1985, when he was thirty-five years old, Alito wrote an autobiographical essay that marked the progress of a committed conservative: a boyhood steeped in National Review, a youthful revulsion at the liberal fortress of Princeton (leading to his membership in an outre alumni group), and an important role in the causes closest to the heart of Attorney General Edwin Meese III. Alito noted that he was "particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

In 1990, Alito became a federal appeals-court judge. In that job, he testified last week, his ideological inclinations were instantaneously rendered, so to speak, moot. "When someone becomes a judge," he said, "you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues." The nominee thus limited his discussion of constitutional issues to platitudes and anodyne summaries of case law. On the suddenly pressing issue of Presidential power, he assured his interlocutors that "the President is not above the Constitution and the laws." Lawyer Alito may have been "particularly proud" of his work to limit abortion rights, but Judge Alito insisted that this view would have no influence at all on Justice Alito.

This studied reticence is similar to that of most Supreme Court nominees since 1987, when Robert H. Bork gave extensive and candid testimony about his legal philosophy and political views. Members of the Judiciary Committee conducted a high-level debate with Bork on civil rights, abortion, and the right to privacy--and the full Senate rejected him by a vote of 58–42. That ...