November 7, 2005

"The claims that Alito is a 'far-right activist' are laughable, except to far-left activists."

Stuart Taylor weighs in on the treatment of Samuel Alito. (Via How Appealing.)
He richly deserves the praise that he has received from colleagues and friends across the political spectrum for his powerful mind, intellectual honesty, and fairness.

The American people will figure this out. Any effort to filibuster Alito seems very likely to fail, and likely to backfire against Democrats.
That's what I've been saying too.
Alito will try as hard as anyone -- and far harder than O'Connor -- to be intellectually honest and analytically rigorous, and to keep his political preferences out of his legal rulings. He will therefore disappoint the most passionate political conservatives and horrify many liberals.

The notion of an apolitical justice may seem preposterous to academics and journalists who see judges as politicians in black robes, and view their opinions and citations as camouflage for preconceived ideological agendas. But Alito's opinions show that he takes the ideal of judicial restraint very seriously. Both conservative and liberal colleagues confirm this.
I devoutly hope so.


John Jenkins said...

Are there any prominent (politically) conservative legal realists? I can't think of any off the top of my head, and that is probably part of the problem here. Given that most of the commentariat on the left is going to be of the realist (or crit) persuasion, it goes against their fundamental beliefs that a person can exist who doesn't judge that way. It's not so much that Alito seems preposterous as much as they refuse to accept his judicial temperpent as genuine because they're so sold on the realist's notions that evidence to the contrary is just seen as evidence that he's exceptional at disguising his preferences and implementation thereof.

reader_iam said...

". ...Alito will try as hard as anyone ... to be intellectually honest and analytically rigorous, and to keep his political preferendes out of his legal rulings. ..."

"The notion of an apolitical judge ..."

"I devoutly hope so."


With regard to judges specifically and most importantly.

With regard to all of us, the noble ideal and goal of intellectual honesty and rigor is one worthy of pursuit, even if, at the outset, we acknowledge the certainty of falling short.

As to "devoutly hoping," I hope we all do, and am sure that significant numbers of people likewise hope--more than significant, I'd venture, with regard to readers of Althouse and bloggers of similar temperament (and I use that word advisedly--it is no way a synonym for opinions, political or otherwise, anywhere on the spectrum).

Still I must say, that hopin', like wishin', ain't gettin', as one of my grandmothers used to say. Therein lies the challenge.

I'm glad we have people like Ann who can bring their expertise, reputation, achievement, and authority to bear in analyzing specific issues and refuting the refuting/combatting the misinformed, disinformed, and not-operating-in-good faith crowd, wherever in the political spectrum in which they reside.

vnjagvet said...


I think you have something there. Llewllyn the "realist" vs. Hart, Wechsler, Frankfurter, etc., the analytical "objectivists".

Interesting that once upon a time, political and judicial conservatives thought Hart, Wechsler and Frankfurter were liberals.

Al Maviva said...

(politically) conservative legal realists?

Frank Easterbrook on the 7th Circuit appears to follow Holmes' example, if not exactly regurgitating his words. He more willing to use outcome-oriented methodology when textualism, the face of a statute, won't get him there, IMHO. Mostly a good judge, but sometimes the way he gets to his results makes me cringe. I've also seen a fair number of trial court judges who are conservative and outcome oriented, but having clerked for a trial court judge I think that focusing on outcomes, seeing that justice be done in specific cases, within the confines of the law, is the province of trial courts.

On the larger issue of Alito, this conservative attorney & Fed-Soc member is thrilled with the Alito pick. I don't mind being disappointed at times when that results from a judge being consistently modest and restrained in his methods. That's all I ask for, in fact; I don't want outcome oriented conservative judges any more than I want outcome oriented liberal judges. Well, okay, if I had to pick between the two, I'd take the conservative. But I'd really, really rather not, and between an outcome oriented conservative (who makes a hash of the law) on the Supreme Court, and a liberal textualist, I'd go with the liberal textualist. The law is just a process for arbitrating disputes, and the process only works to the extent that we follow it and make it methodical. If it becomes willy-nilly decisionmaking, then it's of no use to anybody outside the court on the day the decision is handed down, and the judicial process itself becomes just an exercise of naked power. That's why I'd take a principled liberal approach (which would disappoint often in the results but rarely in the method) over an unprincipled conservative approach (which would always please me with results but make the decisional law something that can't be relied upon). Hence as a practitioner I prefer Breyer to O'Connor, and will probably ultimately compare Alito favorably to Rehnquist, even though Alito is unlikely to be "as conservative" politically.

Henry said...

Not being a student of legal philosophy, I have a question about legal realism. John said in an earlier post:

Realism is an accepted (if entirely cynical) and widely understood theory of jurisprudence

Why is realism accepted as legitimate? I can see how realism may be a productive theory for analyzing the history of law, but how can it be considered legitimate as a standard for judges? If you believe in the rule of law, realism seems like a contradiction in terms. Like saying "Atheism is an accepted and widely understood theory of Methodism."

It also recalls Bork's put-down of Tribe, which went something like "His theory is protean and means whatever he needs it to mean at the moment."

If a judge or professor indulges in legal realism, on what grounds should lay people take their judgements and opinions seriously?

Even if a judge is biased, at least the judge's pretense at being objective can be observed and evaluated in its own terms.