Jon Kyl, January 30, 2006

In a few days, I will vote to confirm Samuel Alito to be a Justice on the U.S. Supreme Court. I believe he is highly qualified, has absolute integrity, and understands the proper role of a judge.

I base my decision not only on his three days of testimony in the Judiciary Committee and his 15 years of judicial decisions, but on the opinions of those who knew him best. During the Judiciary Hearings, several of Judge Alito’s colleagues from the appeals court on which he serves in Philadelphia testified on Alito’s behalf.

These judges, Democrats and Republicans, all praised his intellect and character, and they told the Judiciary Committee that they had never seen Judge Alito approach a case with an ideological agenda.

These were the men and women who knew him best and who had worked with him, collectively, for more than 75 years. Everything they were saying was consistent with what I had concluded in watching Judge Alito testify and in our private conversations.

Unfortunately, the debate in Washington has not been about Judge Alito’s qualifications and integrity. In fact, I am pretty sure that not a single Senator has questioned either one.

Instead of talking about qualifications, many in the Senate are urging a change in the test for confirmation for judges. Some Senators have been trying to get Judge Alito to commit to certain results in cases that are sure to come before the courts. These Senators want the Court to impose or sustain their policy goals.

Now, we all want our policy goals to become law, but the way to do that is through legislation at the state and federal level, not by asking courts to enact our policy preferences.

I understand why people want to know how Judge Alito will vote. Frankly, I am personally quite curious about how he will decide the cases that could come before him.

For example, I wonder if he will vote to reverse the terrible Kelo decision, which makes it easier for local governments to take away people’s homes and businesses by eminent domain.

I don’t want our Supreme Court creating a constitutional right to same-sex marriage, and I don’t think that partial-birth abortion deserves constitutional protection.

I hope Judge Alito upholds efforts to guarantee that crime victims have a role in the prosecution and sentencing of criminals. I also hope he doesn’t vote to take away Arizonans’ right to have a death penalty for the most heinous of crimes.

So, yes, I am curious how Judge Alito will deal with issues like these. Those issues have a real impact on Arizonans. But it would have been wrong for me to ask him how he would rule. And it would be equally wrong to base my vote on my own guesses and hopes about those rulings. I didn’t ask, and he shouldn’t tell me. (I should point out Judge Alito swore under oath that President Bush and his staff did not ask him how he would rule on cases, either.)

Think about what kind of court system we would have if judges had to make promises to the President or to Senators before they could get confirmed. Litigants expect to be treated fairly. They want judges to look at their arguments with an open mind, not to have their minds closed because they had already promised to rule a certain way.

Justice Sandra Day O’Connor said at a speech last September at Arizona State Law School that the rule of law is "hard to create and easier than most people imagine to destroy." She is right. I think that Sam Alito will do his part to protect the rule of law, and I think we will be proud of his service.

Senator Jon Kyl, a Republican, represents Arizona in the U.S. Senate. He serves on the Senate Judiciary Committee, the Finance Committee, and the Energy and Natural Resources Committee.