Monday, January 09, 2006

The Limited Role of a Judge

A former law clerk to Samuel Alito named Conor Dugan had an essay in Sunday's Grand Rapids Press regarding Samuel Alito. From a quick google search, it appears Conor is a former blogger. I think this sums up the attacks on Alito nicely:

One of the primary lessons I learned from Judge Alito was about what a judge is and is not in our constitutional system. Much popular thinking about the judicial function holds that the judiciary is just another extension of politics. In this view, a judge ought to attempt to sort out political disputes and to bring to bear his or her personal policy preferences on the law.

This clearly is the perspective of Judge Alito's critics and also of many popular media accounts of his record. For instance, the Washington Post, in an analysis of Judge Alito's work on the bench, described him as " highly sympathetic to prosecutors (and) skeptical of immigrants trying to avoid deportation," as if his decisions in these cases indicated his personal preferences. These accounts of Judge Alito's record never ask what the law required in a particular case but, rather, focus on the results of his decisions.

Such characterizations also assume Judge Alito personally supports the underlying policy of the law at issue and conclude that his decisions skew in the direction of his personal preferences. It is guaranteed that much of the questioning during this week's hearings will revolve around this understanding of the role of a judge and these characterizations of Judge Alito's opinions.

But, as I learned from Judge Alito, this understanding of what a judge is and does is profoundly misguided. Judge Alito taught me that the starting point in any case must be what the law requires. Judge Alito showed me and my fellow clerks that a judge is to put personal ideology aside and ascertain the meaning of the law -- not the meaning he or she wants. A judge has a quite limited role and a solemn responsibility to live up to that role.

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