a rare foray into legal commentary

One of the interesting things about being in law school is when I follow the coverage of the Alito confirmation hearings it makes me feel smart.*

For example, the other day one of the journalists asked one of the legal analysts to explain what Alito meant by the “something called the political question doctrine.” Oooohh, ooohh, I know, I know. Call on me! Me, me, me. Hmmm…I guess I really learned something last year!

Then there was the inane attempt by one of the senators to get Alito to admit that some parts of the Constitution can only be interpreted in one way. First they agreed that no one under age 30 could ever run for U.S. Senate. OK, that makes sense. No room to mis-interpret that part of the Constitution. Then they started talking about whether a ‘naturalized’ citizens could ever become President and it somehow turned into a discussion of illegal immigrants becoming citizens and the senator kept pestering Alito to admit to something. I forget the exact details but it was a simple proposition. Still, Alito wouldn’t admit it and the senator gave him hell for equivocating. I’m no lawyer (and if you knew my political views you’d know why I feel a little queasy coming to Alito’s defense) but I can understand why Alito would be hesitant to render an opinion interpreting the Constitution without hearing both sides of the argument, studying the issue, and carefully crafting an answer. Even most knee-jerk right-wing conservative justices don’t off-handedly throw out their Constitutional interpretations.

And there’s way too much talk about stare decisis and whether Alito “believes in it.” Most educated people, even those not in law school, knows what stare decisis is (it’s the doctrine of precedent, in case you didn’t know). But it takes about two weeks of law school to realize that it’s sort of a joke – sure, judges follow precedent but when enough judges want to change existing law and reverse what had been precedent, they can always do so by picking and choosing legal arguments. And that’s not necessarily a bad thing because times change. (Think slavery, women’s rights, a small agrarian-based economy in 1789 vs. a major world superpower today, etc.) Otherwise we’d have the same laws today we had in the 1800s which might not be such a good thing. So just because he believes in stare decisis doesn’t mean Alito will or won’t change existing laws.

There is something about these hearings, with Senators who know less about the law than second-year law students leading the charade, that makes the whole thing seem like a farce.

*notice I didn’t say I am smart—just that I feel smart.