Brownback's opening statement on Alito

The opening statement of Sen. Sam Brownback, R-Kan., as prepared for delivery at the Supreme Court confirmation hearing for Samuel Alito.

Welcome, Judge Alito, to the Judiciary Committee.  I congratulate you on your long record of public service and on your nomination to serve on our nation’s highest court.

A large part of the reason why confirmation hearings have become contentious battles is the ever-expanding role of the courts in American life in recent years.  When the courts improperly assume the power to decide issues more political than legal in nature, the People naturally focus less on the law and more on the lawyers who are chosen to administer it.  Most Americans want judges who will stick to interpreting the law, rather than making it.  It is beyond dispute that the Constitution and its Framers intended this to be the role of judges.

For instance, although he was perhaps the leading advocate for expansive federal power, founding father Alexander Hamilton nevertheless assured his countrymen in Federalist #78 that the role of federal courts under the proposed Constitution would be limited: “The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.” 

As Chief Justice Marshall later explained in Marbury v. Madison, the Constitution permitted Federal courts neither to write nor execute the laws, but rather to “say what the law is.”  The narrow scope of judicial power was the reason the people accepted the idea that the Federal courts could have the power of judicial review; that is, the ability to decide whether a challenged law comports with the Constitution.  The people believed that while the courts would be independent, they would defer to the political branches on policy choices.

It may seem ironic, but the judicial branch preserves its legitimacy through refraining from action on political questions.  This concept was perhaps best expressed by Justice Felix Frankfurter, appointed by President Franklin Delano Roosevelt.  He said this: 

“Courts are not representative bodies.  They are not designed to be a good reflex of a democratic society.  Their judgment is best informed, and therefore most dependable, within narrow limits.  Their essential quality is detachment founded on independence. History has taught us that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic, and social pressures.  Primary responsibility for adjusting the interests which compete of necessity belongs to the Congress.”

I would note parenthetically that it was for this reason that Justice Frankfurter, a steadfast Democrat, strongly opposed the Court’s 1962 reapportionment decision in Baker v. Carr – a perfectly defensible position then and now.

Some interest groups and even some members of this Committee have argued that Judge Alito must be more closely scrutinized, or even opposed, if his testimony suggests that he would change the ideological balance on the Supreme Court.  This notion misunderstands the role of judges, and creates a double standard suspiciously convenient to those in opposition. 

Seats on the bench are not reserved for causes or interests – they are given to those who will uphold the rule of law, so long as a nominee is well-qualified to interpret and apply the law.

This has long been the case with the Supreme Court.  Historically, its makeup has changed, just as the elected branches have changed.  In fact, nearly half of the Justices – 46 of 109 – who have served on the Supreme Court replaced Justices appointed by a different political party.  In recent years, even as the Court has become an increasingly political body, the Senate has not focused on preserving any perceived ideological balance when Democratic presidents made appointments to the Court.

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