Balkinization  

Monday, January 09, 2006

Faithful to the Rule of Law?

Mark Tushnet

I have no illusions that anyone will pursue the following line of questions for Judge Alito, but doing so might usefully educate the public about what a person means by "dedicated to the rule of law."

Q: Judge Alito, you've said that as a judge your one obligation is to the rule of law. I want to find out what you mean by that. Let's talk about a case you considered -- United States v. Rybar. You dissented in that case. Do you think that your colleagues did not follow their obligation to the rule of law? [If the answer is, "No," -- unlikely, I would think -- the next question is, "Does that mean that anyone who disagrees with you about what the right outcome in a case is, is unfaithful to the obligation to the rule of law? That doesn't sound at all modest to me."]

A: Yes, we simply disagreed about what the rule of law required in that case.

Q: So, judges who are equally faithful to their obligation to the rule of law might disagree about what that requires them to do in a specific case. Then, when there is that kind of disagreement, on what basis do you actually decide the case? Citing the rule of law isn't enough, because you've just told us that you and your colleagues both were faithful to the rule of law. So, what else is there?

An honest answer, not that it would be forthcoming, would refer to the judge's overall vision of what the Constitution is about -- at which point it would seem appropriate to follow up by asking Judge Alito to describe that vision in a way that would explain why he was right in Rybar and his colleagues were wrong.

Comments:

What should a good children’s book be like? If you ask me, I can tell you after thinking long and hard: It must be good.
Agen Judi Online Terpercaya
 

Post a Comment

Older Posts
Newer Posts
Home