An observation from National Review's Ed Whelan regarding Supreme Court nominee Sam Alito and Levine's Second Rule of Law:
[G]iven the celebrated inconsistency of Justice O'Connor's positions and her steady slide to the Left over the years, most if not all of the several instances in which the Supreme Court has disagreed with Judge Alito have a ready and telling explanation: Judge Alito, at the time of his rulings, has taken seriously the Supreme Court precedents then in effect and has, with intellectual rigor, applied them faithfully — only to learn later the cruel lesson that O'Connor's ad hoc approach is subversive of principled decision-making. Alito has, in short, been far more faithful to Supreme Court precedent, and to O'Connor's previously stated positions, than O'Connor has.
But will Alito really be different? Some evidence making the rounds in newspapers and blogs suggests not -
Katherine (Kate) Pringle is a partner in a New York law firm. She is also a progressive Democrat who was heavily involved in John Kerry's presidential campaign. And after she graduated from law school in 1993, she spent a year working as a law clerk to Third Circuit Judge Samuel Alito, Jr.
...
Pringle added that Alito is "not interested in being expansive with judicial opinions. He decides the specific issue in front of him, and is not inclined to go beyond that."
The "deciding specific issues" approach to judicial decisionmaking has been associated with the Justice that Alito would replace, Sandra Day O'Connor. O'Connor is known for writing very narrow opinions that resolve little more than the precise set of facts presented to the Court - and some have criticized her for that practice, preferring that Justices write expansive opinions laying down broad rules for future cases. I asked Pringle whether she thought Alito was in "the O'Connor mold" in this respect. She thought that he was. She described Alito as "interested in focusing on the immediate case at hand. He is not someone who is eager to reach out and grab broad principles and institute them separate and apart from the case." I asked whether Alito might alter his case-by-case approach to judging on the Supreme Court. Pringle didn't think he would.
Deciding cases on grounds that are too narrow inevitably leads to ad hoc decison making and further violations of Levine's Second Rule of Law.
Will Alito be tempted to follow in O'Connor's footsteps? Only time will tell....
Posted by Justin Levine at November 2, 2005 02:59 AM | TrackBack