Post Date: Novemeber 10, 2005

The following op-ed by Professor John Manning, Balancing Act, originally appeared in The New York Times on November 10, 2005.

Some Democratic members of the Senate Judiciary Committee have argued that Judge Samuel A. Alito’s nomination to succeed Justice Sandra Day O’Connor merits more thorough scrutiny, if not outright rejection, because it would disturb the “balance of the court.” Whether Judge Alito will in fact shift the Supreme Court to the right on any matter is unknowable. But whatever kind of justice he may turn out to be, the premise of some ideal and inviolate balance of the court cannot be grounded in principle or put into practice.

As a matter of principle, to suggest that presidents should select nominees who will leave the court’s ideological composition intact implies that the court’s jurisprudence is always precisely where it should be – that nothing can ever be gained from a change in the perspective, experience or philosophy of any justice. Even more troubling still, the baseline for assessing “balance” at any given moment is almost entirely arbitrary. If today’s balance differs from that of an earlier court, presumably past presidents and Senates already violated the balance principle when they selected and confirmed the members of the court that we now seek to preserve.

To make the point more concrete, the Senate did not balk over “balance” when Ruth Bader Ginsburg was confirmed by a vote of 96 to 3 in 1993 to succeed Justice Byron R. White, who was considered far more conservative than she on many crucial issues, beginning with Roe v. Wade. Unless one is willing to say (without tongue in cheek) that today’s court preserves the balance of the court appointed by George Washington and of every court in between, no rational basis exists to believe that the present ideological composition merits greater respect than that of any court that has come before or, more important, of any likely to follow.

The practical concerns entailed by the balance argument are also daunting. No justice is so one-dimensional that it will be possible to replicate his or her philosophy in any meaningful way. Justice O’Connor is a swing vote on abortion, matters of sexual orientation and affirmative action. But she is among the most conservative justices – and considered by some to be an activist – on matters of federalism.

To maintain the ideological balance, must the president find someone who is liberal on the matters on which Justice O’Connor leans to the left, and conservative where she leans to the right? Since Senator Charles E. Schumer is one of the balance argument’s most vocal proponents, he would presumably have to vote against the nomination of a justice who took a more generous view of federal power than does Justice O’Connor – even though he has repeatedly denounced the states’ rights jurisprudence on which Justice O’Connor has so often taken the lead.

Ultimately, it will be difficult to avoid seeing Judge Alito as the Republican equivalent of Judge Ginsburg. When nominated to the Supreme Court, both had more than a decade of service on the federal bench. Both were widely respected by members of the bench and bar. No one doubted, at the time of her nomination, that Judge Ginsburg was liberal (indeed, she had been general counsel to the American Civil Liberties Union). Nor could anyone seriously have doubted that she had the temperament, intelligence and judicial integrity to merit confirmation to the Supreme Court, even though she was replacing someone of different philosophical leanings.

The same principle applies to Judge Alito (whose pre-judicial career, in fact, consisted of the more mundane and less ideologically indicative life of a longtime Department of Justice official). Even if he turns out to be, by some measure, more conservative than Justice O’Connor, Judge Alito – like Judge Ginsburg – surely has the temperament, intelligence and judicial integrity to merit confirmation to the Supreme Court.

John F. Manning is a professor at Harvard Law School.