Personal Beliefs of Judges

On Saturday, Senator Kennedy decided to muddle reality a little bit with his article in the Washington Post. His five reasons to question Alito's credibility are all worth reading (and I'm sure the bloggers have already set the record straight), but I found his fifth point most interesting:

5. His promise to leave his personal beliefs behind when he became a judge : That's what he told me in 1990 he would do. But has he? In November 2000, at one of many Federalist Society meetings he spoke at, he indicated that he was a true believer when it came to the society's longstanding theory of an all-powerful executive. His endorsement of presidential power and his criticism of the Supreme Court for undermining it made clear that his philosophical commitment in 1985 still drives him.

Clearly Kennedy does not understand the issue. Kennedy's proof that Judge Alito is influenced by his personal beliefs is a speech at a Federalist Society meeting. This only shows that Alito has personal opinions -- which is allowed of every person, even a federal judge. It does not show that these personal opinions guide his decisions on the bench. Alito has been a judge for many years, yet Kennedy does not cite an opinion in which Alito has ruled based on his personal beliefs. therefore, he has no choice but to mislead the American people with this sleight-of-hand article. If I had any respect for the man, it would be shattered.

In case it is not self-evident that a judge can hold strong personal views but not let them influence his decision, Judge Pryor esplains it well in his confirmation hearings:

Senator SCHUMER. Okay. Let me ask you this one. Again, you have fervent personal beliefs on Roe v. Wade.

Mr. PRYOR. I do.

Senator SCHUMER. And I respect those. . . . Many people believe abortion is wrong, but when you believe it is murder, how can you square that with—or how can you give comfort to women throughout America, the majority of whom believe in the right to choose, that you can be fair and dispassionate? I do not think it is enough, as I mentioned earlier, for us to simply hear you say, ‘‘I will follow the law.’’ What can you say directly to that woman, not in a legal way, but in a personal way, that might reassure her?

Mr. PRYOR. I would say that that woman should be comforted by looking at my record as Attorney General, by looking at the fact that though I have vehemently
disagreed with Roe v. Wade on the one hand, as Attorney General, where I’ve had a constitutional duty to uphold and enforce the law on the other hand, I have done
my duty. And in the context specifically of when the Alabama partial birth abortion law was challenged, that law could have been interpreted in at least a couple of different ways, I looked at the precedents of the Supreme Court in Roe and in Casey, and gave the narrowest construction available to that law, and ordered the district
attorneys of Alabama to enforce it only in that narrowest construction.

Senator SCHUMER. Now, you have said on occasion, on several occasions, that Roe v. Wade is quote, ‘‘the worst abomination in the history of constitutional law.’’ Do you believe that as of right now?

Mr. PRYOR. I do.

. . .

Senator SCHUMER. Let’s say this case is pretty much a rehearing of Roe. It comes up to the Court. They accept it. Would you endorse the Court reversing Roe?

Mr. PRYOR. Well, I’ll tell you this, in the context of the Stenberg case, when it was
presented to the Supreme Court of the United States, the Attorney General of Nebraska at the time was a very dear friend of mine named Don Stenberg, and
he presented two questions before the Supreme Court, and one of the questions he
presented was an invitation for the Court to overrule Roe. I called him up and urged him not to include that question in his petition. So I would say that in that instance, I did not do that.

Senator SCHUMER. Just one quick. ‘‘If you believe—this is what we have a hard time squaring, myself, I think some others—if you believe that Roe is the worst abomination in the history of constitutional law, it would seem to me to directly follow that you would want the Court to reverse Roe. It is a contradiction. You just said a minute ago that you believe that is still the case, and now you are saying you would not endorse the Court reversing it. It does not add up.

Mr. PRYOR. Well, Senator, all I can tell you is that the last time the Court had that opportunity, I urged my colleague not to present that question to the Court.