But first, a sampling of Alito humor. The speech that Senate aides are talking about most dates back to April 1996, when Alito, who had been a judge on the U.S. Court of Appeals for the 3rd Circuit for six years, addressed the Association of the Federal Bar of the State of New Jersey. The topic of the day’s conference was courtroom technology of the 21st century. But before he opined on that subject, Alito delivered a lengthy riff on how his own “technoskepticism” reach-ed an epiphany on an Amtrak train. He frequently commutes by train between Newark, N.J., where his chambers are located, and Philadelphia, where the 3rd Circuit sits. One day, on a return trip to Newark, the train stopped dead on the tracks, and stayed there for two hours. The train ahead of it had broken down, and the engineer had trouble contacting his superiors for permission to back up.
“I noticed that while the engineer of our train couldn’t make radio contact with New York, virtually every other passenger on my car was talking to somebody on a cellular phone,” Alito said. “I had no other choice but to listen as, all around me, my fellow passengers conducted utterly banal conversations on their cellular phones.” He continued with a description of the businessman who, “in a booming voice,” ordered lunch by phone and then told his wife at length about their dog’s trip to the vet.
At several points during the wait, Alito said, he got up and walked around, noticing that most of the people who were not talking on their cell phones were playing games on their laptops. “It was at this point that it dawned on me: One of the big reasons why people in the legal profession . . . snap up new technology has little to do with efficiency or productivity. Rather, it has to do with toys, games, gizmos, and the thrill of something new and expensive. As I looked at my fellow passengers, in business attire, staring at their laptops, their images morphed into the image of my 10-year-old son playing one of his computer or video games.”
Alito continued, invoking Microsoft Chairman Bill Gates’ then-cutting-edge vision of being able to pause the movie “Top Gun” and order Tom Cruise’s aviator glasses online. “This same technology could and undoubtedly will eventually be adapted for Court TV,” Alito said. “So, if in the 21st century you are watching a trial or better yet, an appellate argument and you think that Judge So-and-So’s bifocals are really cool, you’ll be able to pause and find out where you can buy them.” He went on in that vein for a while, ending with the moral of his story: “There is a difference between being a discriminating �technogourmet’ and a �technoglutton’ who gobbles up every new thing that comes along.”
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What does that story and others suggest about Alito, other than he might look favorably on a law requiring cell-phone silence on Amtrak trains? “This gives a more memorably personal sense of the man than anything else we’ve seen so far,” says David Garrow, a Supreme Court historian at Cambridge University who has read the Amtrak speech. “It demonstrates he has a superb sense of humor and that he’s not stiff, formal, or pompous, as many people expect a judge to be. If he’s able to convey some of the personality this speech reflects during his hearings, people may actually find him quite winsome.”
Well, winsome might be a stretch, but former Alito law clerk Jay Jorgensen agrees that Alito is a “very funny guy,” though not in the same way as “the guy at the corner bar.” Alito is not good at “mindless banter,” and he won’t laugh at jokes that target or stereotype individuals or groups. But when a judge in the next office in the Newark federal courthouse pompously put stone lions at the entrance to her chambers, Jorgensen recalls, Alito stationed plastic pink flamingoes outside his own door. The lions soon vanished.
Jorgensen, a partner in Sidley Austin Brown & Wood’s D.C. office, hopes Alito shows his softer side at the hearings, but if senators go on the attack, “it’s going to be hard to see the funny and easygoing him.”
Some other, more serious nuggets from Alito’s past speeches:
In the same federal bar speech, Alito stopped short of endorsing or rejecting cameras in the Supreme Court but had some favorable things to say.
“Some ordinary viewers who are today unable to name a single member of the Supreme Court would become familiar with the justices and would form opinions, favorable or unfavorable,” Alito said. But he also added that “some lawyers arguing before the Court in televised cases would use the occasion to address the television audience for political or other purposes.”
Alito also credited Justice David Souter’s concern that the justices themselves, and their questioning, might be affected by the presence of cameras. “All of this is not to say, however, that television should be barred,” Alito continued. “The Supreme Court is a very important and powerful institution. Like all our governmental bodies, it is ultimately accountable to the people, and televising arguments would provide a way for the public to understand the Court’s work.”
Until recently, Alito chaired a committee of the Judicial Conference that recommended a controversial rule change allowing lawyers to cite so-called unpublished appellate opinions the sometimes cursory decisions that decide most appeals court cases and that currently cannot be cited as precedent in some circuits. In a talk earlier this year at Washington and Lee University School of Law, Alito offered his own view on the subject. He made it clear he does not support eliminating unpublished opinions and believes lawyers should be allowed to cite them. “A lawyer may cite [other] secondary sources,” Alito said. “But if a lawyer . . . has the temerity to call to the attention of the court what a panel of that very court said . . . the lawyer risks sanctions. Such a system cannot be justified.”
In the same talk, Alito obliquely criticized the 9th Circuit, where Judge Alex Kozinski has been the leading opponent of citing unpublished opinions. Without using Kozinski’s name, Alito quoted his famous statement that when a court labels its own opinions as unpublished, it should not be contradicted, just as when “the people making the sausage tell you it’s not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.” Said Alito, “If these comments are accurate, the described practices should be changed.”
Alito’s notes for a 1996 talk on the role of law clerks before the Duke Law School chapter of the Federalist Society suggest he was critical of the law clerk selection process. He quoted Judge Alfred Goodwin of the 9th Circuit as saying the process had “all the dignity of the Oklahoma land rush and the efficiency of a calf scramble.” The remedies, he suggested, were decreasing the jurisdiction and caseload of the courts, which he indicated was unlikely; bureaucratizing the courts by hiring more staff attorneys; or increasing the size of the courts with “lots of judges/lots of clerks.”
�At a 1997 Federalist Society discussion on “The Crisis in the Legal Profession,” Alito sharply criticized a then-recent article in The Champion, the magazine of the National Association of Criminal Defense Lawyers, depicting defense lawyers as gladiators. “This gladiatorial image is wildly inaccurate,” said Alito. The defense lawyers he knew spent a lot of time, he said, “guiding clients, witnesses, and other people on the periphery of investigations, with the objective not of meeting the prosecution in a battle to the death in the courtroom but rather of getting the person through the investigation without having a criminal charge filed. . . . Lawyers who engage in this type of practice have many subtle and highly developed skills, but those skills cannot be described as gladiatorial.”
In a speech before the Heritage Foundation in 2002, Alito praised the value of amicus curiae briefs as long as they are not repetitive or agenda-driven. “We judges are the last generalists in the legal profession which is perhaps a polite way of saying that, from the perspective of the specialist in any particular field, there is a lot that each of us doesn’t know,” Alito said. “If an amicus can fit the question into a broader context and do so in a way that is fair and not manipulative, there is great potential to help the court and have an impact on the result.”
When he was U.S. attorney in New Jersey in 1989, he spoke before a civic group about the “great sacrifice” of jury duty and pointed proudly to an organized crime case in which he pushed for keeping the names of jurors anonymous. “Despite the nature of the case, the anonymous jurors were able to weigh the evidence without fear of harassment or retaliation,” Alito said, adding that all the defendants were sentenced to up to 80 years in prison.
And finally, another joke, this one delivered by Alito in 1995 as he accepted the Thomas More Medal from Seton Hall University School of Law, where he also teaches. He was making the point that More was both a lawyer and a saint.
“There is a joke,” Alito said, “in which an Irishman and I will spare you any attempt at a brogue stops in a cemetery before a tombstone that says, �Here lies a lawyer and an honest man.’ �And who’d ever think,’ the Irishman murmurs, �there’d be room for two men in that one little grave.’ ” Bada boom.
Tony Mauro can be contacted at [email protected].