Confirming Justice Alito?

A few thoughts on the likely confirmation of Judge Alito:

1. A significant bias is built into the system: Those who know a nominee best, or well, are unlikely to be willing to raise questions in public. I have heard from several friends of Judge Alito who do not want to see him on the Supreme Court, but who like and admire him and will not say a public word against him. The reason for their silence is personal loyalty. For lawyers and law professors generally, there is good reason to be circumspect, especially but not only if you know a nominee well: You might well make an enemy, and a lawyer or law professor doesn't much like having an enemy on the Supreme Court. (It's true that many law professors sign petitions against nominees, but the signatories rarely know the nominee personally, and many potential signatories have refrained from signing on the ground that I'm describing.) The same point holds even more strongly for lower court judges, who can easily support, and uneasily criticize, any presidential nominee. Law clerks have the same bias in even stronger form. I clerked for Justice Thurgood Marshall, who was, on many issues, far to my "left"; but even now, long after his death, it's not comfortable to criticize my old boss.

2. Judge Robert Bork might be having the last laugh. At one point in the hearings, Judge Alito said this: "I think that we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption." This is of course Judge Bork's approach to the Constitution, and it is part of what got him in so much trouble in the confirmation process. To date, there has been hardly a murmur of interest in Judge Alito's statement. (Admittedly, one reason may be his embrace of precedent, which will often forbid use of the original understanding; and Judge Alito did not address particular issues in the way that Judge Bork did.)

3. Many people have said that Chief Justice Roberts and Judge Alito are indistinguishable, and it's easy to see why: They have similar careers and they're both strong lawyers and fine judges. But their records are quite different. On the bench, then-Judge Roberts produced a body of work that was hard to characterize in ideological terms. On the bench, Judge Alito issued dozens of noteworthy dissenting opinions, often to the right of one or two Republican appointees. None of these opinions was reckless or irresponsible. But the overall pattern is entirely different from what could be found in then-Judge Roberts' record. In the confirmation hearings too, Judge Alito sometimes sounded different from, and less moderate than, Judge Roberts. A sidenote: Interestingly, neither of them embraced Justice Harlan's approach to the privacy issue, as (if I recall correctly) did both Justice Kennedy and Justice Souter. This is another potentially pleasing point for Judge Bork.

4. It seems clear, as of this writing, that Judge Alito will be confirmed; should he be? The answer depends on one's view of how to evaluate potential nominees. For those who think that ability and integrity are enough, there is no problem at all; Judge Alito has a great deal of ability and unquestionable integrity. For those who think that Justice Scalia and Justice Thomas have the right approach to the Constitution -- or who would be happy with someone who thinks broadly along the lines of Chief Justice Rehnquist -- there is certainly no reason to object to Judge Alito. For those who do not think that the Court should have someone likely to be to the "right" of Justice O'Connor or Justice Kennedy, confirmation is a mistake. (You never know to an absolute certainly, but a sensible guess is that Judge Alito will be to their right.)

The question is harder for those who believe that ability and integrity are not enough, who strongly reject the approach of Justices Scalia and Thomas, but who believe that the President certainly ought to have the discretion to select someone who does not follow in the track of Justice O'Connor and Justice Kennedy. Among such people, there is room for reasonable disagreement, with the conclusion turning on a judgment about the extent of the President's discretion, an assessment of what Judge Alito is likely to be like, and an evaluation of what "points," on the relevant spectrum of likely votes, are really most troublesome.

Comments

[Raw Data]

I wonder if the huzzahs (and would you ever get anything else except in extremis?) for Judge Alito offered by his fellows members of the Appellate Court should be banned as inappropriate buttering-up of a man who will be reading their decisions. And favorably they all hope.

Their testimonials seemed rather odd to this lay-person; and the little bit I heard -- and it was very little I admit -- was dripping in treacle and not at all credible: the sort of thing you'd hear when the gold watch was awarded at the retirement dinner but without the humor.

[SAgrawal]

There is little doubt that, as Senator Lindsay Graham said, "Elections matter." As Professor Sunstein states, if ability, integrity, and judicial temperament are the touchstone for determining the whether a nominee should be confirmed, Alito should be confirmed.

Moreover, nobody can complain that Dubya this time selected a "stealth" nominee. Judge Alito had more than an ample record for the Senate and publi to examine and scrutinize. What is disappointing, however, is the rather poor job that Senate Democrats did in examining Judge Alito. Rather than conduct proper cross-examinations -- the kind that a trial lawyer would do of a witness (in either civil or criminal context) -- with leading questions, the Democratic Senators' questions were absurdly long, completely lacking in precision, and generally of no probative value.

Would such an examination have doomed Judge Alito's nomination? Almost certainly not. But it would have at least shown the Democrats to have fully performed their "advise and consent" role. Instead, they appeared to be disorganized, frustrated, and incapable of making the points that they intended.

Yet another (regretable) indication of the party's ineptitude and lack of cohesion.

[vnjagvet]

I was impressed with the breadth and depth of those Third Circuit colleagues that agreed to testify for Judge Alito.

None of these individuals needed to agree to make the trip to DC and testify. Any of them could have satisfied themselves with speaking with the ABA Standing Committee on the Judiciary, or writing a letter of recommendation or the like.

That so many of his colleagues would appear to state under oath that the Judge is no ideologue I believe to be persuasive.

Most persuasive to me was forme Judge Lewis. He could very easily have declined to testify for fear of offending current clients or partners.

As a respected African American former Circuit Court Judge and colleague of Judge Alito's, his willingness to testify in person was powerful evidence that Judge Alito is not "outside the mainstream" as asserted by the interest groups vociferously opposed to his nomination.

[Raw Data Complex]

Vnjagvet,
Yes the judges were not required to provide testimonials.
But then again the courtiers at the Court of Loius XIV were not required to be there -- except by commonsense and self-interest. It is not obvious to this lay-person but surely there must be very competitive politics within the judiciary. A lot of these judges were "bar review" at top schools and such competitiveness doesn't disappear when covered by a black robe.

I would like to know more -- and I think the judges have ultimately made a mistake in inserting themselves so directly into clearly partisan politics -- about how their little jaunt to DC came to be. Who organized it? The White House? One of the judges? Judge Alito, heaven forbid!? Who was invited to testify? Who declined to testify? Who on that Circuit gains by Judge Alito's elevation to the Supreme Court?

There's a story there, though judging by the initiative of the media, I am dubious we will ever learn.

[Richard]

If I remember correctly, Judge Roberts did in effect adopt Justice J. M. Harlan's approach to Griswold and the "right to privacy." In other words, our old Constitutional friend, "substantive due process." Any number of "conservatives" at Confirmthem.com objected to Judge Roberts for precisely this reason.

Judge Alito was not as clear on this point, but did refer to the "liberty" protected by the 5th and 14th Amendments as the source of the "right to privacy." In my book, this ultimately means that he also agrees with Justice J. M. Harlan's concurring opinion in Griswold.

My guess is that both Justice Roberts and Judge Alito will be more similar to Justice J. M. Harlan than to Justices Scalia and Thomas. Of course, I could easily be wrong.

[Kimball Corson]

I genuinely believe Judge Alito's principal failing, which to my lights should be fatal, is his overly strong propensity to defer to decision-makers and administrators below, if not to prosecutors as well. He clearly favors governmental institutions and those in positions of power over individuals, and as such is too likely to favor government agencies of all stripes and large corporations instead of being a fair-minded reviewer of their questionable activities. That he can craft his decisions well in these regards is of no comfort.

An inference here is that Alito is likely to end up being an arrow in the heart of our Bill of Rights and a serious compromise to the notion that the Supreme Court should be a check to and balance against the other two branches of government, and not a patsy to government. I agree that he is much more potentially injurious and dangerous to constitutional rights than Justice Roberts. Being likewise unknowledgeable about his past club memberships, especially any that are likely to be an issue for the confirmation process, is more than troublesome. It goes to his integrity.

If I were his wife and didn’t know better, I would have cried too.

[Jonesie]

Two small points on "integrity":
1. I don't believe for a New York Minute, as they say, that Judge Aliton doesn't remember the circumstances causing him to put CAP as a reference for this Reagan Administration application. I will speculate that even if he was not an important member of the group --- and I suspect he was not --- the reason he listed the group would not put him in a good light so he simply "forgot".

2. Further, even if taking part in the Vanguard case was neither unethical nor a breach of his promise to the Senate, Prof. Gillers to the contrary notwithstanding, I cannot believe that Judge Aliton did not realize that Vanguard was a party. The Vanguard name, after all, was all over the papers.

Small points? Perhaps.

[free pizza]

When I started law school, I was poor. I noticed that there was an organization on campus that had a lot meetings with free pizza lunches. I joined the organization because it was a good way to get free lunches.

Before I started interviewing for jobs, I thought that I should show on my resume that I was involved in the law school, more than I actually was. So I listed my membership in the organization, which consisted only of eating pizza.

Come to find out, when I began interviewing, some interviewers loved me and others distrusted me because of my membership in this organization. I had no idea what the society stood for (other than good, free pizza), and any inference as to my character or politics, good or bad, made from my membership was not particularly accurate.

Stupid? Sure. People shouldn't join organizations just for free pizza. But people do stupid things when they're young. Whether Alito's membership in this Princeton organization is just such a stupid thing, I do not know. But it seems that, whatever your opinion of his judicial philosphy, there has been nothing else in the hearings or from his record to suggest he is not a man of integrity. It seems he deserves the benefit of the doubt.

[Kimball Corson]

It is a bit distressing to see Chief Justice Roberts voicelessly dissent in the 6-3 Supreme Court decision to uphold Oregon's assisted suicide law in Gonzales v. Oregon, 04-623. Does anyone here doubt that Judge Alito, if now on the Court, would have been right at his side dissenting too?

That both of these men wish to expand executive power and prerogative seems rather clear to me. I find this troubling because such expansions by these two likely implies a commensurate reduction in Congressional power and inititive, at least ab initio, and somewhat of an abdication of the Court’s own role to check and balance executive power and, further, because with a faith-based chief executive much foolish mischief or worse will likely ensue, with expansive precedents coming that saner heads will require years to sort out and clean up.

Too, would this not be “judicial activism” of the very type conservatives rail against when it does not suit their politics? Too, I fear that Alito and Roberts will pull each other in the directions of what I consider to be each of their own worst judicial tendencies.

According to his own lights and certainly not mine, President Bush may well have hit a home run with these two.

[Raw Data Complex]

Free pizza,
You are no doubt correct.
As GW Bush, in one of his few lucid statements, told us that "When I was young and foolish, I was young and foolish. That was an honest and disarming remark. Alito should have said something along those lines rather than his suspicion-engendering vaguery.

[Mark]

Is there really room for reasonable disagreement?
I'm going to borrow from the structure of pro-choice activists here. (There is no room for reasonable disagreement, because abortion is muder. Murder is on a level of moral wrongness that we cannot turn a blind-eye to it. You can't just tolerate murder because people disagree about it.)
Suppose you believe that certain issues, like the recent issues about torture and executive authority, are similar. One might well hold that torture is so morally wrong that to tolerate is existent is itself another case of moral-wrongdoing. We can't just tolerate torture because we disagree with it. We have a moral obligation to stop it.
The "unitary executive" theory that some in the current administration and some lawyers and judges believe, might well be seen as tyranny. If we believe that is tyranny, we can't just tolerate it. Tyranny is one of those things - like murder and torture - that are beyond the pale.
If you follow these arguments, and you're in agreement on the substantive moral issues at stake, disagreement about these issues and about Alito's confirmation is not reasonable at all. One side is in the clear right and on the other side is moral monstrosity.

[Kimball Corson]

Integrity and competence are clearly not enough, in my view, for Alito or any other nominee to past muster.

If I am right that, based on his record, Alito will be an arrow to the heart of our Bill of Rights, is he not a violator of his prospective oath of office to become a Justice to support and uphold the Constitution and indeed even potentially subject therefore and thereafter to impeachment if he proceeds as he likely will? Radical thoughts to be sure, but the analysis is not unreasonable, only unconventional and suggestive of additional criteria for approving nominees.

[Kimball Corson]

Sunstein writes:

“Judge Robert Bork might be having the last laugh. At one point in the hearings, Judge Alito said this: "I think that we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption." This is of course Judge Bork's approach to the Constitution, and it is part of what got him in so much trouble in the confirmation process. To date, there has been hardly a murmur of interest in Judge Alito's statement. . .”

Professor Sunstein then suggests Alito’s adherence to precedent limits his application of this method of constitutional interpretation, and too, Bork’s manner was different as well.

But was not Bork’s position, to his own lights, similarly, if not equally limited by precedent? And to be sure, Bock’s manner was different (and more interesting). However, a further and more likely explanation for the different reaction in my view is that the political climate in America has changed so radically that what roiled us then does not even cause us to blink now. Is this not a slippery slope we are on?

[Kimball Corson]

I cannot imagine a law student joining a group, even if for only free pizza, the basic principles of which he did not know. That he understood those principles and joined anyway for the pizza is the point at which understandable misjudgment occured in light of possible later situations similar to Judge Alito's. Alito compounded his problem by knowingly using his membership as a sword when it suited him and then being in need of a shield later when it did not.

Tiger's stripes though a looking glass.

[Kimball Corson]

Geof's latter piece on why Alito should not be confirmed seems to have run away with the ball here.