Alito and the Injustice of the Law

    I was in the car a lot today: had to drive Aidan to and from the dentist; then had to go to an out of town meeting.  Where I live there are few options for radio listening.  Beyond NPR, there are only a couple of noisy pop radio stations.  And NPR was dominated today by the Alito hearings.  Ouch. 

    Now, I am fairly well-informed politically (I can tell many of the Senators by their voices); so it should have had some interest for me.  But, I must say, it was, at times, painful listening to the back and forth.  It strikes me that, whatever one thinks of Alito (and he is obviously trying to hide a clear position against Roe v. Wade), he is almost certain to gain the Supreme Court seat.  Democratic "moderates" are not going to support a filibuster and Republicans will have sufficient votes to get him through.  And everyone knows this.  The "credibility issues" - his membership in an odious Princeton alumni group, and his failure to list a company he owned shares of on his "recusal list" - while embarrassing for him, do not appear to be enough to sink him.  So, the senators are simply trying to score political points with their constituents in advance of the foregone conclusion.

    All of this brings out my Taoist skepticism.  As I listened today (and, were I a Senator, I would vote against him for his overly generous grant of power to the President), I realized, again, how inadequate the law is as a vehicle of justice.  Yes, I know, we must have a relatively consistent legal system.  I know that China' s lack of a consistent legal system produces more injustice there than what is typical in the US.  But, for all of that, our legal system, any "system" that relies upon preservation of consistency over flexibility, inevitably produces its share of injustice.

    Senator Durbin was questioning Alito on a series of cases where, as the Senator put it, quoting Bruce Springsteen, the "dead hand of fate" worked against powerless and abused individuals when they faced the law in Alito's court room.  If the "system" can be shown to have been consistently followed, even if crucial pieces of mitigating evidence were somehow omitted, then it's just too bad.  As judge Alito said, if certain arguments or evidence are not brought up in the trial phase, they cannot be considered in the appellate phase.  I understand why a rule like this might be necessary, but I also recognize that, for some people, the system will fail, in the sense that they will be given harsher sentences than might be warranted or, worse, might be found guilty when they were, in fact, innocent.  That is why I am against the death penalty (we have seen too many death cases reversed on later evidence, especially DNA evidence).

     And this is where Taoism comes in.

The more prohibitions rule all beneath heaven
the deeper poverty grows among the people.
The more shrewd leaders there are
the faster dark confusion fill the nation.
The more cleverness people learn
the faster strange things happen.
The faster laws and decrees are issued
the more bandits and thieves appear.
    - Tao Te Ching 57

      Again, recognizing the necessity of the law in modern society, we should, at the same time, not place all of our faith in the law.  Law is no more just than the people who carry it out.  If judges cannot understand that rules must sometimes be bent, that "systems" must sometimes be inconsistent, in order to secure justice, then justice will not be secured.  It was fairly clear today that Alito was quite willing to sacrifice justice in the name of the system's consistency, and he is by no means alone.

     Update: Michael O'Hare has thoughts that resonate here.

Comments

[The Rambling Taoist]

Superb analysis!!

As a long time enviro-peace activist, I constantly remind people that law and government are only pieces of the pie. Society, as a whole, is another piece.

If people are resolute, we often have the power to influence government and law more than they impact us.