Alito and Originalism

Andis Kaulins at Lawpundit parses some of the legal wrangling over Supreme Court nominees. The post is keyed to Miers, but most of it is as relevant to Alito as to the previous nominee.

Some of the bases Kaulins touches that are important to me include:

• Supreme Court justices primarily are in the business of judging the constitutionality of laws. Whether the laws are fair, or redress the wrong they were intended to cure, is obiter dictum. Deviations from this, as in the case of Brown vs. Board of Ed., are usually bad judicial behavior and have unpredictable consequences (is the education presented to black children better in America overall than it was in 1955?). The bench is the wrong tool to write or enforce laws.
  
  
• "Dogmatic originalists" are bad for the country and just as dangerous as judicial activists, in part because in many cases no one knows what the Founders would have thought about important modern issues. Prayer in schools? They knew what prayer was. Prayer wasn't a problem to them. But a state-controled and mandatory network of education -- that would have made their powdered wigs spin around. Originalists risk falling into the Potter Stewart obscenity trap: "they know it when they see it." But we don't all see alike.
  

  
  It is also important to distinguish originalist dogma-oriented Justices - where dogmatic thinking is always a sign of intellectual weakness - from Justices who see their job as "deciding cases" and who are not interested in being activist pseudo-legislators. Being liberal or conservative as a judge is never synonymous with "judicial activism" per se, where the latter term applies to judges who decide cases by circling around the existing precedents to suit their own politics.
  

  
  
• I'd like to think that Supreme Court justices represent all Americans, and are able to interpret the law without jockeying for the special interests of a class, race, gender, whole-wheat-vs.-rye, whatever. But we've arrived at a point where more and more of the nine seats seem to be treated as the rightful property of one faction or another. I hate this deliberate balkanization of America, and its expression on the top court. If we worked so hard to tear down the wall between black and white, why have we been so busy since then dividing up the country on other lines?
  
  
• And nine is far too small a number to play quotas with. You can't distill America's complexity into nine compartments, without serious overlap. Then you're into a "Readers Digest" puzzle that will end in a quest for the most qualified lesbian Native American or Alaskan Islander judge under 50 of moderate conservative leanings.

Kaulins' post is particularly perceptive on the connection between abortion and originalism.