Judging the Judge

On Oct. 31, President Bush nominated Woodrow Wilson School alumnus Samuel Alito, Jr. '72 to succeed Sandra Day O'Connor as an Associate Justice of the United States Supreme Court. After a decade long stretch without a vacancy on the high court, Alito will be the third nominee to face public scrutiny in the past four months.

But with respect to this year's first two nominees, John Roberts and Harriet Miers, many of the questions posed by both Congress and the public were left troublingly unanswered. It is our hope that over the coming months, and especially during the congressional hearings that will ultimately decide the fate of his nomination, the nation will come to have a thorough understanding of Alito's judicial philosophy. His extensive judicial record, of course, is a good start and should guide the questions that senators pose to the nominee. In particular, we look forward to hearing the judge's comments on the following themes:

First, how should precedents be used as a guide to the high court when hearing new cases? Under what circumstances can and should a precedent be overturned? While some might focus their attention mainly on the Roe v. Wade precedent, we look forward to broader questioning that will illuminate more than just Alito's views on this one issue, but will help clarify how he is likely to view the proper role of the court for the coming decades.

Next, what is the extent of the power of the executive branch, and how and when is the Supreme Court permitted to exercise checks on that power? Indeed, as he has been nominated by a President who is fiercely committed to the discretion and the autonomy of the executive branch, it will be interesting to see how he would limit those prerogatives.

Finally, what is the proper way to divide legislative power between federal and state authorities? In an era where almost all commerce can be construed as interstate commerce, it is increasingly unclear how the line between federal and state power should be drawn.

Chief Justice Roberts had a very limited record when he went before congress. Miers withdrew her nomination before facing hearings and could likely have avoided many questions by citing the need for discretion within the executive branch. In Alito, we have an experienced judge who seems fully able to answer any questions pertinent to his nomination. We, and the nation as a whole, look forward to his answers.