“Having these people in the class with diverse backgrounds and outlooks on the issues that we were discussing made an enormous contribution to the class,” Alito told his questioner, Sen. Russ Feingold (D-Wis.). “So in that setting, I have personal experience about how valuable having people with diverse backgrounds and viewpoints can be.” He noted that in both the 1978 Bakke case and in the 2003 ruling in Grutter v. Bollinger, justices had viewed achieving diversity as a compelling state interest that justified affirmative action programs.
Eagerly, Feingold picked up on the anecdote, asking if he would be correct in concluding that “nothing about what you just said would suggest to me that you think it’s anything less than a compelling state interest.”
Alito quickly drew the shades. “It’s a precedent,” he replied, reverting to his placid style. “And the Supreme Court has dealt with this over a time, and that’s the conclusion they’ve drawn.”
The rare personal glimpse was over, and Alito returned to his cautious refusal to offer any hints about how he would rule on cases that might challenge Court precedents.
But the anecdote pointed up the key unanswered question from the Alito hearings: Which Sam Alito will prevail should he, as seems likely, be sworn in as a justice? Will it be the shy judge who doesn’t seem to get out much and is surprised to see a multihued group of students before him? Or will it be the pre-3rd Circuit Alito whose legal skills were sharpened while he was a foot soldier in the Reagan legal revolution?
And it helps explain why Democrats gained little traction in scrutinizing Alito’s cloistered judicial life, leading them instead to focus critical attention on his years in the Reagan administration before the “judicial monastery” smoothed any partisan edges he had. Democrats voiced deep concern that, once Alito is freed from the circuit court obligation to obey precedent, his Reagan-era loyalties will resurface and make him the most faithful emissary of the Reagan revolution on the Supreme Court.
A PRODUCT OF THE TIME
Chief Justice John Roberts Jr., like Alito, cut his teeth during the early years of the Reagan administration, but Roberts’ career was leavened by two stints in private practice, from 1986 to 1989 and from 1993 to 2003. By contrast, before Alito joined the 3rd Circuit, in 1990, where he was obliged to follow precedents, his only experiences as an advocate were in government, mostly in the Reagan and George H.W. Bush administrations. Alito never practiced law privately.
“This was the Reagan plan, and it is coming to fruition in the person of Sam Alito,” said Elliot Mincberg, legal director of the liberal interest group People For the American Way, after listening to three days of Alito testimony.
Charles Cooper of Washington’s Cooper & Kirk, who headed the Reagan Justice Department’s Office of Legal Counsel and worked with both Alito and Roberts, laughs at that notion. “Nobody sat down and said back then that we are going to choreograph the rise of John Roberts and Sam Alito to become members of the Supreme Court.”
But that said, Cooper acknowledges that it is unsurprising that two stars of the Reagan legal era attracted President George W. Bush’s attention. “Make no mistake,” he says. “We were determined to nominate people who believed in judicial self-restraint, and those of us in the Justice Department hoped that members of our group would continue to pursue public service.”
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And while Alito seems to have forgotten some parts of that experience namely, why he listed Concerned Alumni of Princeton on a 1985 job application the Reagan years still appear to be vivid in his mind.
During an exchange with Sen. Dianne Feinstein (D-Calif.), Alito was asked about a 1986 memo he wrote urging President Ronald Reagan to veto the Truth in Mileage Act, passed by Congress to deal with odometer fraud. Alito wrote then that the measure would violate principles of federalism by intruding into an area of law enforcement traditionally left to the states.
Alito responded candidly that the memo represented “not an interpretation of the scope of Congress’ constitutional authority, but a recommendation based on the federalism policies of the Reagan administration. . . . Its policy was to go further in respecting what it viewed as the federalist system . . . than the Constitution required, to go further as a policy matter.” As it happened, Reagan rejected the advice and signed the bill.
When Feinstein asked if Alito still agreed with the position he took, Alito reverted to form. “As a judge, I would have no authority and certainly would not try to implement any policy ideas about federalism.” But the nominee also acknowledged that the federal-state landscape has changed in the past 20 years. “With the expansion of federal regulatory programs, the federal government has taken on broader and broader responsibilities in those areas,” he said, responsibilities that “I don’t believe are being challenged on constitutional grounds at this time.”
It was like that all week, with Alito occasionally offering a tantalizing analysis of the current legal landscape but then falling back on his fealty to the judicial process the sober steps of weighing precedent and then assessing the facts of the case without reference to policy preferences. It frustrated Democrats, leaving them with little to cite, except informed hunches, about how Alito would rule on issues such as abortion and executive power.
In his opening statement, Alito said one of his “habits of mind” is not to decide a case until all the facts and arguments are in. During questioning he said that if he was confirmed to the Supreme Court, “the first step of the process” would be to read all the briefs filed in a case, including the amicus curiae briefs something not all current justices do. He also said that on the 3rd Circuit he has had “numerous cases” in which he has changed his mind while writing an opinion.
On the recurring issue of precedent rarely before has the Latin phrase stare decisis been bandied about so much on cable television Alito carefully modulated his responses depending on what precedent he was being grilled about.
Alito said he was comfortable commenting on cases that were unlikely to be challenged anytime soon, and he cited the “one man one vote” rulings as well as Brown v. Board of Education, which ordered an end to segregated schools, and even Griswold v. Connecticut, which based the right of married couples to buy contraceptives on a theory of privacy. The abortion decision Roe v. Wade, “on the other hand, involves an issue that is involved in a considerable amount of litigation before the courts, and so that’s where I feel that I must draw the line.”
The careful, fact-specific approach to cases that Alito articulated all week is one of the tenets of the Reagan approach, though it was also one of the aspects of Justice Sandra Day O’Connor’s jurisprudence that angered conservatives. Her decisions were so fact-specific that overarching principles were hard to detect.
When Sen. Herb Kohl (D-Wis.) pressed Alito to compare himself to O’Connor, whom Alito was nominated to replace, he cited with approval “her belief that each case needs to be decided on its complex facts,” adding that “I would try to emulate her dedication and her integrity and her dedication to the case-by-case approach of adjudication.” But Alito declined to say whether, by emulating O’Connor’s approach, he would wind up in the center of the Court, as O’Connor so often did. “Anyone appointed to a judicial position has to be himself or herself,” Alito said.
LANDING ON THE SPECTRUM
Alito’s cautious approach is what appealed to Cooper: “What struck me the most was his genuine ability and genuine determination to control his passions and look at tough legal issues dispassionately, with objectivity and neutrality. He has the quality to truly blind himself to the circumstances of the litigants and practice his belief that all litigants regardless of stature, wealth, color, religion are the same.”
Of course, that came across to Democrats as bloodless and devoid of humanity, and Cooper says it may have cost Alito some support. “But that is the judicial responsibility.”
Alito’s comments during last week’s hearings led Pepperdine University law school professor Douglas Kmiec, also a veteran of the Reagan and first Bush Justice departments, to conclude that Alito and O’Connor do in fact approach cases similarly. “The general methodology of Alito is case- rather than theory-based and, certainly in the initial years, heavily bounded by precedent.” He predicts that Alito will join the “right-center” segment of the Court, with Roberts and Justice Anthony Kennedy. In Kmiec’s taxonomy, Roberts and Kennedy are joined by Justice Stephen Breyer for a “center-left” coalition, with Justices Clarence Thomas and Antonin Scalia on the right wing, and Justices Ruth Bader Ginsburg and John Paul Stevens on the left.
During the final day of the hearings, a panel of law professors and other experts were asked which justice Alito would be most similar to, and none picked O’Connor. Critics Erwin Chemerinsky of Duke Law School and former Clinton White House Counsel Beth Nolan, now a partner with Crowell & Moring, said he would be like Scalia. His supporters, by contrast, compared Alito to long-dead justices: the second John Harlan in the view of Anthony Kronman of Yale Law School, and Robert Jackson in the opinion of Harvard Law School professor Charles Fried, who worked with Alito in the solicitor general’s office. Harvard’s Laurence Tribe, also a critic, placed Alito between Scalia and Thomas.
Their disagreement, in the final hours of the Judiciary Committee’s hearings, seemed to offer positive proof that if Alito had begun the week with the intention of hiding the ball, he had succeeded. No one present appeared to have any more of a clue as to what kind of justice Alito would be than when the hearings started. Save for a few stray comments about diversity, nothing much had changed.
Tony Mauro can be contacted at [email protected].