Inside Washington's Headlines

by Ken Feltman

Where is the equity?

In case your children ask, here is a short explanation, quite rough, of what the Senate accomplished during the hearings on the nomination of Judge Samuel Alito to the Supreme Court of the United States. Children know about drunks and other undisciplined characters from an early age; they need to know a bit about senators and judges, too.

Years from now, we may look back on the Alito hearings as several watershed events. Some senators gave performances that were more like the drunk at the party who doesn’t understand that it’s time to go home. They kept bellying up for just one more turn at the microphone.

The story is in the performance of the Democrats. Only two Republicans, Senator Lindsey Graham of South Carolina and Chairman Arlen Specter of Pennsylvania, played significant roles. Graham shamed the grandstanding Democrats into acquiescence if not submission. He reminded everyone that the Democrats were really objecting to Alito because they were pretty sure that they might disagree with a future decision of his. They were attacking Alito on flimsy grounds because they could not argue that he is not qualified to be on the Supreme Court. Specter showed discipline, especially when Democrats tried to hijack the hearings.

The hearings should mark the effective end of Senator Biden’s (D-Del.) quixotic quest for the presidency. Biden showed again that he qualifies for the egotists’ hall of fame, not the White House. Simply because he is so self absorbed, Biden will not realize that he is not presidential material. He will subject us to more of his blather. Because he is capable of thoughtful analysis, people who agree with his conclusions will continue to cluster around in support and Biden will feed on that adulation. Perhaps it will carry him to the Democratic convention. Republicans will root for Biden because they know that in the crucible of a presidential campaign, he will die the death of a billion blathers.
 

Senator Kennedy (D-Mass.), the liberal lion of the Senate, is no longer the hunter. His is the toothless roar. Full of bluster but short on facts that stand up to scrutiny, Kennedy has become a one-note performer. His act worked when the Democrats ran the Senate. With Republicans in charge, he is like the silent movie star who could not make the transition to talkies.

Senator Schumer (D-N.Y.) will not stop grandstanding for the TV cameras. In fact, he may be given media opportunities by his fellow Democrats, who will come to see Schumer as the useful fool. He will soak up TV exposure delivering a message that other Democrats want delivered without their fingerprints. He is becoming less a spokesman than a gadfly.

Kohl and Durbin asked the right questions

For the Democrats, Senators Kohl (D-Wis.) and Durbin (D-Ill.) gave noteworthy performances. They ignored the infighting among their Senate colleagues for TV time and overcame the bitter divisions among the Judiciary Committee’s Democratic staff members, most of whom wanted to attack Judge Alito on personal issues. For example, Kennedy's attacks on Alito’s membership in a Princeton University alumni group that seemed to support racism and sexism, and on Alito’s failure to recuse himself in a securities case, were not effective. Alito was not bloodied by the attack and, in the end, it was Kennedy who had to quit a Harvard group that does not let women belong. Duh!

Worse, the attacks took the Democrats away from the line of questioning that was most revealing and predictive of Alito’s performance on the Supreme Court.

Kohl framed a question that illustrates the essential difference between the liberal view (sometimes called judicial activism) and the conservative view (strict construction). Peel away the actual words and get to the heart of Kohl’s question and Alito’s response. Should a judge, Kohl asked, ever decide a case by applying a standard of justice or fairness that is not found in the letter of the law? No, answered Alito.

Durbin asked questions that revealed Alito’s unyielding view of the law. A mentally retarded man wanted a new trial based not on the law or the man’s conduct but on a mistake by his lawyer. Alito applied the law and denied a new trial. Durbin asked other questions. The answers show that Alito is brilliant, knowledgeable and unemotional in applying the law.

Very different viewpoints

Children need to know not just that we have very different views of a judge’s role, but what the reasons for the differences are. We often hear about judicial activists and strict constructionists. Perhaps we should substitute more ancient terms: Law and equity. Equity originally was that branch of our legal system that, following the traditions of the English common law, resolved disputes between people. Principles of conscience, fairness and justice were applied to resolve disputes. Equity comes into play when none of the parties to the dispute has done anything against the law, but their rights or claims are in conflict. Thus, it differs from the concepts contained in statutory law (enacted by Congress or a state) and case law (opinions of courts handed down by judges).

Unlike the common law courts, which were rigidly based on precedent, the equity courts had jurisdiction to determine cases according to concepts of fairness rather than according to the strict letter of the law.

Those who support Kohl’s view can make a good argument in equity for upholding Roe v. Wade. Strict constructionists either find a right clearly delineated in the law - or do not find it at all. They decline to extend the law to what they see as the creation of new law or new rights. That is why liberals have come up with a new concept - settled law - to try to protect Roe v. Wade.

Settled law is the legal equivalent of Einstein’s famous fudge factor in his equations, the cosmological constant. Settled law asks, ‘Would you overturn a case that has been around for a long time, is relied upon by millions, but might not have a strong foundation in the constitution or other precedent?’ In other words, can the passage of time give a weak decision the same standing it would have with a constitutional pedigree?

Years ago, across the dinner table, Supreme Court Justice Harry Blackmun explained his slow evolution on a troublesome issue. Blackmun, the author of Roe v. Wade, related the issue of capital punishment from its historical to its contemporary legal foundation. Then he discussed the law, as written and as applied. He discussed the legal basis for applying the ultimate penalty. Finally, he added an element of equity. That addition of equity caused him to come down for limiting or prohibiting capital punishment. The concept of equity (fairness) made him unwilling to accept capriciousness or randomness in the application of the death penalty.

A brick suspended in midair

By the time we ordered coffee, Blackmun had tied up the loose ends in his analysis of the death penalty and had built, brick by brick, his position. Then, quietly, he discussed the fact that sometimes, rarely, a judge might find conduct so adverse to public policy, or so opposed to fairness and justice, that he would extend the law, breaking new judicial ground. I asked if this was like placing a brick in the air, suspended above the last in-place brick? He agreed and said that the decision would be weak. It would need ‘filling in’ to make it strong enough to withstand challenge, he said. Without mentioning Roe, Blackmun had described Roe’s tenuous status.

Blackmun said that fairness is the blood of the law. He discussed the ancient attempts to bring fairness to the application of justice. Those attempts continue, he explained. They include the filling-in of many judicial decisions, including Roe.

Unfortunately, it’s not as simple as this. Perhaps I have made it simplistic. Children sort out shortcomings. They will know that we cannot have only decisions of one kind (law) or the other (equity) because one kind is too rigid and extending equity with no boundaries tends to expand personal privileges without requiring commensurate personal obligations. Unchecked, equity is like a lot of get-out-of-jail-free cards. Creating new rights can create chaos. But strict application of the law can be unfair and can trail societal changes.

That got lost in personal attacks and Senatorial ego. The questions from Kohl and Durbin let us know what we figured we knew all along: Alito is a gentleman, well educated, a good judge, well qualified. He is a solid citizen.

Is Alito’s confirmation a watershed in the court’s philosophy? He is not Roberts. He is not Blackmun. He is not O’Connor. He sees the law clearly and surely. Will he apply bloodless law?

I wish some child had been able to ask Alito what the Senate did not fully explore. What does he think is the proper blending of the King’s law and the old law of equity? Unwavering reliance on precedent can yield excellent technical decisions. But it is in the addition of a dash of equity that the vision - the blood - of a judge is known.

We missed that discussion. Our children will live with the result.

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copyright © 2006 Radnor Inc.