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The Honolulu Advertiser
Posted on: Saturday, December 31, 2005

COMMENTARY
Public knows line between judges, politicians

By Dahlia Lithwick

It would be easy to find yourself disheartened by the undignified and partisan process we cooked up in 2005 to fill two Supreme Court vacancies. Regardless of your personal politics, the process appears sufficiently hollow and mean-spirited to depress virtually everyone.

Liberals can find themselves discouraged by the blatant partisanship and cronyism shown by President Bush in his selections. Conservatives can take no pleasure in the name-calling and the withdrawal of qualified candidates at the prospect of being "Borked" into smithereens. Add to this punchbowl the new phenomenon of blistering television attack ads and the falsity and pompousness of the hearings themselves.

But consider this: There is a larger lesson in the past months' wrangling over these two vacant chairs, and it's ultimately an optimistic one. History may well judge that the confirmation process of 2005 proved to be the moment when the judiciary showed itself to be remarkably resistant to the slings and arrows of brutal partisan campaigning, and the citizenry proved themselves capable of distinguishing judges from pols.

Consider, first, the John Roberts nomination: Here was a supremely qualified, brilliant and thoughtful man whose personal and professional qualifications mapped almost perfectly onto what we consider the ideal justice. Although it's too soon to make any predictions about his performance as chief justice, Roberts' claim to institutional humility for the courts, his clear and penetrating grasp of case law and his acknowledged respect for precedent made him a remarkably appealing nominee. Efforts to use those qualities for political ends — through advertising, lobbying or the hearings themselves — backfired.

Indeed, the moral of the Roberts hearings was clear to anyone who watched: Senators practiced in grandstanding and making deals came out of the process looking like rumpled and silly ideologues. And Roberts — who beat them on style and substance — came out looking like a pro, a seeker of answers and wisdom, not advantage. It's an important lesson. Whatever it is that judges do isn't the same as the business of politics. And politicians should get out of their way and let them do it.

Even the abject failure of the Harriet Miers nomination should be heartening to Americans for much the same reason. Although the president's choice signaled that he had no real respect for — or understanding of — the work of the courts, the resounding rejection of that notion, from both sides of the political spectrum, proved that everyone else gets it.

Americans of every political stripe refused to countenance the kind of politics-as-usual cronyism that led to the installation of a Michael Brown at the Federal Emergency Management Agency. It might have been instinct more than anything else, but we agreed to draw the line at the judicial bench.

So the Miers nomination imploded for the very same reason the Roberts nomination succeeded: because Americans have a very good idea of what a Supreme Court justice should "look" like, and they won't be bullied, lobbied or bought into changing it.

That brings us to the Samuel Alito nomination, which probably won't fare as smoothly as Roberts' or as dismally as Miers'. Alito doesn't match the public perception of the perfect justice, as did Roberts, nor is he shockingly unfit, as was Miers. This ambiguity leaves room for the political machine to gear up, with special interests salivating and party war chests opening.

But no matter how much money is spent on attacking (or supporting) Alito, the sound-bite wars aren't a persuasive forum for debating the merits of a Supreme Court justice. We have every reason to hope that Americans get that, and that they will apply the same instincts about the nuances of a judge's job to the process in 2006 that they did in 2005.

So, for example, they'll realize that federal judges don't make promises in exchange for public support. Instead, most judges meticulously attend to the letter of the law. They are heavily influenced by powerful precedent and their colleagues' reasoning. And in the end, judges become judges because they love to read and think, not because they dream of refashioning national policy.

Make no mistake about it: This country is not well served by efforts to degrade Supreme Court nominees. Reducing any individual to a sentence lifted from a footnote in a decades-old memo is unfair, and it is even more so when such filaments of evidence are used to predict a future voting pattern.

Future justices need to be questioned, their records need to be scrutinized and their judicial philosophies should be plumbed. Genuine ethical and moral failings should be probed. But a systematic process of diminishing and demonizing judicial candidates for political ends ultimately diminishes the law itself.

Dahlia Lithwick covers the Supreme Court for Slate magazine.