In response to:
The Strange Case of Judge Alito from the February 23, 2006 issue
The Strange Case of Judge Alito from the February 23, 2006 issue
To the Editors:
Ronald Dworkin [“The Strange Case of Judge Alito,” NYR, February 23] and Democrat senators were entitled to oppose the confirmation of Justice Alito because they discerned in his statements as a Justice Department official and in his opinions as a lower court judge a conservative disposition that did not accord with their own. They were wrong, however, to complain that Justice Alito was unforthcoming in refusing to answer questions transparently intended to elicit—publicly and under oath—a commitment to decide in particular ways cases about terrorism, executive power, and abortion that were certain to come before the Court in very short order. No one has urged more compellingly than Ronald Dworkin that the extraordinary power wielded by judges in a constitutional democracy is only justified because judges, unlike politicians, must (and must be seen to) decide only according to the reasoned explanations they offer after hearing the arguments and considering the materials in the record of the particular cases before them. That is why Justice Scalia had no choice but to recuse himself in the Newdow case (concerning the words “under God” in the pledge of allegiance), having expressed in a speech a clear opinion about how that case should be decided. Justices Frankfurter and Scalia in their confirmation hearings famously declined to answer any questions about their judicial philosophy for that reason, and Justices Ginsburg and Breyer quite properly limited themselves to the anodyne generalities and somewhat pedantic accounts of the competing considerations governing controversial issues that Professor Dworkin now complains about.
Dworkin should not suggest that because Alito was interviewed before receiving the nomination by the President and Vice President and “Scooter” Libby, he must have given at least tacit assurances about how he would decide cases of interest to the administration. Presidents and their staffs have routinely interviewed persons they were considering for high court nominations. It is Lincoln who famously said he would not ask a potential nominee how he would decide a particular case (Dred Scott?) and if the candidate would answer such an improper question, he would despise him for it. Justice Breyer was interviewed by President Clinton and Vice President Gore. And Justice Souter passed through a gauntlet of Justice Department officials—including Kenneth Starr—before receiving his nomination. There is no fair basis for charging that any of these fine jurists dishonored themselves by exchanging even tacit assurances in return for favorable treatment. Justice Alito deserves the same presumption.
A question may legitimately be raised about Alito’s speech to the Federalist Society endorsing both the doctrine of the unitary executive and Justice Scalia’s dissent in Morrison v. Olson, the independent counsel case (which I argued in the Supreme Court in 1988 and lost). But it misrepresents that doctrine to proclaim that therefore Justice Alito will necessarily be sympathetic to claims that the President has inherent authority to disregard the law in matters such as torture and eavesdropping. The doctrine of the unitary executive, as espoused by the Reagan Justice Department (and before that by FDR), held that the President should be able to direct all members of the executive branch in the exercise of their policy and discretionary functions. The doctrine says nothing about whether there is such executive discretion in a particular case or whether there is or is not inherent power in the executive. In the steel seizure case the Supreme Court ruled that President Truman’s order to the commerce secretary Charles Sawyer was unlawful, not because Truman did not have the authority to order Sawyer how to exercise his functions, but because no executive power existed anywhere to seize the steel mills. Incidentally, I am inclined to believe if I had argued the independent counsel case ten years later under the style Clinton v. Starr, as I would have been glad to do, I might well have prevailed.
Professor of Law
Harvard Law School
Professor Fried makes several mistakes in reading my article. One of them may be so common that it helps to to explain why the public does not insist that judicial nominees answer senators’ questions more candidly. Fried confuses a nominee’s honest statements of his constitutional philosophy with commitments about how he will vote in particular cases soon to come before the Court. He says that I wanted Justice Alito to commit himself “under oath” to decisions in specific cases and that I suggested that Alito “must have given at least tacit assurances about how he would decide cases of interest to the administration” in his interviews with Cheney and Libby. (Fried omits Karl Rove from his summary.) I said and suggested nothing of the kind. I said that nominees should give their views about “general and controversial issues of constitutional principle.” I said that Alito may well have discussed his “views of the president’s powers and other politically sensitive matters” in those interviews; my complaint was not that this was improper but that he should have offered the same information to the Senate and the public. (I continue to doubt that those interviews were limited to Alito assuring Cheney, Libby, and Rove that he would not allow personal bias to affect his decisions.)
There are obvious and important differences between a potential justice making a voting commitment in exchange for a nomination or confirmation, which would be outrageous, and his offering senators and the public a substantive statement of his understanding of the central constitutional provisions I described. A commitment guarantees a closed mind and a statement of principle does not, particularly if, as I suggested, a nominee adds to the latter that “he would read and listen with care to any argument offered to show him that he should change his mind.” A statement of principle may indeed suggest how a potential justice is likely to vote on actual or hypothetical cases. But real cases are complex and often turn on their particular facts, and the argument in a case can lead any justice to qualify or amend his abstract constitutional convictions.
The most important difference, however, is that a statement of principles, unlike a flat voting commitment, offers a justification and therefore an argument. The great power of the Supreme Court is legitimate only if each of the justices exercises that power constrained by general principles drawn from his own conception of the Constitution’s moral authority. A nominee who sets out and defends such a conception promises principled adjudication; a nominee who either commits himself to particular votes in anticipated cases or hides behind opaque, uninformative appeals to the rule of law may have no principles at all beyond partisan politics.
Fried misreads my article in other ways. He says that I single out Alito for criticism because he has a “conservative disposition.” My criticism was much more general: I said that since Robert Bork “several nominees” have made the hearings pointless. He says that Justice Antonin Scalia was forced to recuse himself in the Newdow case because he had made statements of the kind I expect nominees to make: in fact, Scalia had—amazingly—publicly criticized the very decision that was being appealed to his court. He and other sitting justices regularly announce opinions that are much closer to commitments about particular cases than anything I said candor requires of nominees. In their Casey dissent, for example, Scalia and Justice Clarence Thomas declared: “We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.” Does Fried expect either justice to recuse himself when the next challenge to Roe arrives?
Fried also says that I misunderstood Alito’s comments about the unitary executive doctrine. In fact I reported that in the Senate hearings Alito made exactly the distinction Fried now repeats. But I noted that Justice Thomas and several members of the Bush administration have given a much broader reading to the doctrine, which would indeed suggest that Congress could not limit the president’s authority to spy and torture as part of a military campaign, and that Scalia had embraced that wider reading of executive power in a dissent that Alito, while himself a judge, had publicly called “brilliant.”
Finally, I should report, as an addendum to my article on Judge Alito, a disquieting decision he made soon after his confirmation. Justices commonly appoint as their law clerks very recent law school graduates with outstanding academic records and serve the justice for a year before beginning their own careers. Alito has appointed a thirty-seven-year-old high-ranking lawyer at Time Warner, Adam Ciongoli, who was a senior aide to Attorney General John Ashcroft and helped design the Bush administration’s controversial antiterrorism legal strategy. Law clerks often advise justices and help write their opinions; Alito’s choice of a clerk with a strong partisan background and personal involvement in political decisions that are very likely to be reviewed by the Court will not reassure those who fear that despite Alito’s evasive performance at the Senate hearings he will become an extreme and unabashed right-wing member of the Court.