publisher's note
January 13 , 2006


Questions that Alito weren’t asked
by Bruce Rodgers

The Samuel Alito Senate confirmation hearings for the U.S. Supreme Court deserve all the criticism the American public can muster — whether you’re conservative or liberal or just plain irritated with where the country is going.

Call it bad political theater, sleep-inducing TV or background radio noise, the one thing it wasn’t, was democracy at work. Alito wasn’t campaigning for the job, there wasn’t an alternative candidate and the outcome was predetermined. Barring the appearance that he was on crack or admitted to wife beating, he gets the majority vote (split along party lines) in the Senate Judiciary Committee and will be confirmed in the Senate. In the interim, the committee senators pontificate — both sides — and Alito uses the law as his cover to reveal little of how he would judge a case coming before the Court.

If there’s one thing people who have had experience before the law know — and I’m talking about mostly non-lawyers — is that the law can prevent justice and shield the truth. The edge goes to the most experienced and crafty practitioner. The well-rehearsed Alito used that fact well to his advantage. The Bush administration’s goal was for him to use the law to issue non-answers to questions about the law, not defend his conservative beliefs or his deferential attitude toward power, and to come across as a nice guy. He succeeded.

To no surprise, Alito won’t be the swing vote like Associate Justice Sandra Day O’Connor. Neither will Alito be a leader on the Supreme Court. Chief Justice John G. Roberts will continue to grow his leadership prowess. Alito won’t be like Justice Clarence Thomas, with his near maniacal fundamentalist view of the Constitution. He, instead, will likely look to Justice Antonin Scalia for assurance, and Scalia will emerge as the Court’s conservative maestro. Surprisingly, I believe, Roberts eventually will become the swing vote O’Connor was, but not before the power of government to regulate is eviscerated, particularly in protecting the environment and church/state separation. The Court, however, will be loose in its oversight of government intrusion into privacy and civil liberty protections.

But this is just speculation on my part. The U.S. Supreme Court, and its members, is the least understood of any branch of the U.S. government. Compared to elected and appointed officials of the other two branches, we know little of what makes these individuals, who sit in judgment and interpretation of the founding principles of this country, think, act and react. Yet, it was this branch of government, by a 5-4 vote, that bought us the 43rd president of the United States in 2000.

Maybe, part of the problem is the questions the senators asked Alito. Asking about stare decisis, presidential signings and the unitary executive is the typical inside-the-beltway thinking that leaves Americans disenchanted with and disconnected from their government.

The questioning should be like what ordinary people do in trying to figure out who they are dealing with and where that person is coming from. The following are some questions a lot of us ask someone we’re new to in trying to get to know them because we know they’ll be around for a while in our life. Maybe Samuel Alito should have been asked these, too.

1) Ever played tennis, chess or pool?
2) Do you give money to the homeless?
3) Do you recycle?
4) What does your best friend do for a living?
5) Ever loaned a tool or book to a neighbor?
6) What kind of car do you drive?
7) Ever returned an item back to a store or written a letter of complaint about something you’ve bought?
8) Are you a football or baseball guy?
9) What’s your favorite TV program?
10) Ever flipped anyone off during a road-rage incident?
11) Does your wife pick out your suits?
12) Ever attended a religious ceremony or gone to a church other than your own out of curiosity?

Answers to above questions would give an indication of what kind of person you and we are dealing with. How Alito answered them could tell us how empathetic, curious, independent, competitive, generous, honest and open-minded he is. Of course, it doesn’t give any indication of how well he knows the law.

But which is more important when you have the power to tinker with democracy?

Bruce Rodgers can be contacted at


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