Especially while the Miers nomination was still in play, but still occasionally since then, I've been hearing a mantra from judicial conservatives, and I'm trying to figure out what it means. The line is that a Supreme Court nominee needs to have a comprehensive theory of judicial interpretion. Otherwise, we're going to have someone without any judicial principles who will simply legislate preferred social policies from the bench. See, for instance, Kenny Pearce. I agree with most of what he says, actually, but I'm trying to figure out what counts as a comprehensive theory of judicial interpretation.
Kenny's example is Justice Scalia, whose vote is thoroughly predictable due to having a clear judicial philosophy, while Justice O'Connor has been the opposite. I'm not sure predictability is necessarily a sign of a clear judicial philosophy. Someone might be predictable precisely because they do favor a certain set of outcomes and base their decisions solely on such considerations. Some do accuse Scalia of not being truly consistent with his comprehensive judicial philosophy when he doesn't want to be (which I think is at least a worry with his affirmative action position). But he does have an official one, however consistent with it he may or may not be in practice. So it's not having one that's important. It's following one. And it's not just following any old one, because it would be a comprehensive judicial philosophy to say that we should simply uphold all lower court holdings. What matters is having a good judicial philosophy, not just having any old comprehensive view.
Nonetheless, I'm interested in the question of what it is to have a comprehensive judicial philosophy and why that's even necessary. Does Judge Alito, for instance? He seems not to be an originalist, anyway, at least not in the absolutist way that Justices Thomas and Scalia claim to be. Chief Justice Roberts flatly denies that he's one. Maybe these two are just more honest about other principles that enter into their decision, but the question I have is whether you need to have a comprehensive theory that goes only on some central standard like original meaning or original intent, taking such a principle as absolute. Both would say that they pay attention to a variety of factors. Roberts denies that he has such a comprehensive theory. I'm wondering why this is bad, for one. I'm not even sure it's right to deny it the status of a comprehensive judcial theory, either.
One could certainly have a theory that's more comprehensive that includes a number of factors, including both factors of those two originalist views (original meaning and original intent) and what strict constructionists pay attention to, not forgetting stare decisis principles regarding precedent, whether a law has proved unworkable, whether the factual basis of a decision has been undermined, and so on. It seems to me that Alito and Roberts would both consider such factors. The question seems not to be whether a judge has some overarching theory where one factor leads to an absolutely predictable result. It seems to be whether their choice of which principles guided their decision had to do with wanting a certain result or whether it had to do with some reasonable argument for deciding the case on that basis rather than on a different principle in the list above.
Given this, what should go on in judiciary committee hearings? What I haven't seen that I think could easily help here is to go back to particular decisions the judge in question (this would only work for a judge) has publicly recorded an opinion on. If senators ask Alito which of the above principles above entered into his Casey v. Planned Parenthood opinion and which did not and why, I think we might get some insight into how he works as a judge, much more than we got with Roberts. It would probably need to be a bit more specific than even that, but that's the direction I think would help. Unfortunately, senators are so busy grandstanding that we don't see them asking specific judicial philosophy questions about specific cases that a judge who has been on record about already can surely not refuse to comment on. They did ask Roberts some questions about his cases, but they didn't probe to this level (and many of them didn't do it to get insight into his judicial thinking but to try to fish for a "gotcha" moment).
I hope they will ask this sort of question with Alito, because I think we'll actually learn something about him if they move beyond the results-oriented lines of questioning that they seem to want to satisfy their constituencies with. What principles of stare decisis entered into a particular case, and why? There was nothing wrong with Roberts' answer about applying the principles of stare decisis but then not saying how he would apply them with something like Roe v. Wade. The problem wasn't that Roberts didn't say enough. What would have helped a lot is if Senator Specter hadn't stopped at asking either general questions or specific questions about decisions still to come. He should have sought out some cases where those principles might have come into play and asked Roberts how he applied them in a case he's on record about and exactly why the cases came out with the result they did. He could have probed additionally on cases that he agreed with that won't likely come before the court again. He admitted to a number of such cases. Surely some of them involved stare decisis principles, and he could have explained how those principles applied. If worst came to worst, they could even have asked Roberts to pick a case he didn't mind commenting on where these principles entered in and explain how it was rightly decided.
With Alito, we need no such thing. With a record like his, they can surely probe into how he thinks about things at a level deeper than they did with Roberts. The problem isn't that the nominees can't answer certain questions. It's that the senators aren't asking the right questions.