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The Strange Case of Judge Alito

This stonewalling strategy works. Judge Samuel Alito’s performance was particularly evasive, but his lack of candor made his confirmation inevitable. If he had revealed the opinions he actually holds about what rights the Constitution protects, he might well have been defeated. But he provided no headlines that would alert Americans to the very real danger that he will join the legal revolution that right-wing administrations, think tanks, judges, and justices have been planning for decades.

Chief Justice John Roberts, in his own hearings last fall, offered little more substance than Alito has; he apparently persuaded the several Democratic senators who voted for him that he would prove to be a moderate rather than a right-wing justice.1 But in his first important vote he joined the two ultra-conservative justices, Antonin Scalia and Clarence Thomas, in dissenting from the Court’s 6–3 holding that former Attorney General John Ashcroft had no authority to stop Oregon voters from adopting a cautious assisted-suicide plan.2 It seems likely that Alito will now provide a dependable fourth vote to form a right-wing bloc that will have a great impact on constitutional law for a very long time. But his performance before the Senate, like Roberts’s, gave the public no warning of this and therefore no chance to object. Democratic senators appear likely to vote solidly against Alito because they think they know what he actually stands for. But the result of his steadfast silence means that they have little chance of creating popular support for a filibuster to defeat him.

In my view, future nominees can be discouraged from such evasion only if there is a change in the public’s understanding of the function of the confirmation hearings and of the nominees’ moral responsibilities in those hearings. Enough people must be persuaded that the hearings are not a game of hide-and-seek and that a nominee who fails to be candid is morally culpable. It would be helpful to that end if the chairman of the Senate committee (or the ranking member of the other party) were to explain in his opening statement that the committee accepts without further reassurance that the nominee intends to abide by the law and will apply what he believes to be the general principles that underlie the Constitution rather than try to invent new ones.

He should then add that he and the committee are well aware that lawyers disagree about what these principles are, and how they should be identified, and that the committee is therefore anxious to know the nominee’s answers to these controversial questions of principle. Perhaps the public can somehow be persuaded that a nominee’s failure to answer those substantive questions candidly would justify—indeed force—senators of both parties to vote against his confirmation. That may sound unlikely, but it is hard to see what else could save the constitutional process from irrelevance.

Many lawyers think that the change I propose would be a change for the worse.3 Constitutional rights are often unpopular, and we should want Supreme Court justices who will protect those rights even when a substantial majority of the public is opposed to them. Any requirement that nominees disclose their actual opinions might mean that only judges with a particularly narrow view of individual rights would be appointed. In today’s political climate, for example, presidents might be reluctant to nominate judges who would assert strong liberal opinions about the barrier between church and state. That objection would be stronger, however, if presidents appointed justices on intellectual ability alone, and were as ignorant as the public generally is about their nominees’ constitutional philosophy. But of course they do not and are not.

Harriet Miers, whom Bush had first nominated for the seat that Judge Alito will now hold, had to withdraw her nomination because right-wing Republicans, though they represent only a minority opinion on such matters as abortion and presidential power, are nevertheless sufficiently powerful within Bush’s political base to dictate that he choose someone in whom they had more confidence. The conservatives who condemned Miers were ecstatic about Alito. The current ground rules guarantee not that judges will keep their own counsel on constitutional matters until they are on the Court, but that the President and the politicians he is most anxious to please will know his views while the nation does not. Alito was interviewed before his nomination not only by President Bush and administration lawyers but by Vice President Cheney, his deputy, “Scooter” Libby, who has since been indicted, and by Karl Rove. Do you doubt that they know something about Alito’s views of the president’s powers and other politically sensitive matters that he did not disclose at the hearings?

The Senate’s decision to reject the nomination of Robert Bork in 1987, after he had candidly announced his very narrow view of constitutional rights, showed that large numbers of Americans are attracted in principle to the idea of substantial constitutional rights, even when they disagree about which particular rights people should have. There would, in any case, be little point in the constitutional requirement that the Senate “consent” to judicial nominations if the Senate’s duty were merely a matter of ascertaining that the nominee does not take bribes and is willing to proclaim allegiance to the rule of law.

2.

In 1985, in his application for a job with the Reagan administration, Judge Alito wrote that he had always been a conservative, and that his career as a lawyer in that administration justified his claim.4 His subsequent fifteen-year record as a federal judge confirms it as well: his decisions place him far to the right even among other federal judges who were appointed by Republican presidents. Statistics about judicial opinions must be treated with great care, since a judge’s decision in any particular case may turn on facts and doctrinal subtleties that are hard to fit into neat categories. Still, the statistics in Alito’s case are revealing. Professor Cass Sunstein, a respected and cautious legal scholar, has analyzed all of Alito’s dissenting opinions in cases that might plausibly be thought to raise issues about individual rights against what Sunstein calls “established institutions.”5 He reports that Alito voted against individual rights in 84 percent of the cases in which a majority of other judges on his court upheld those rights. In only two of these cases was the majority composed only of judges appointed by Democrats. Indeed, in almost half of the cases the majorities from which Alito dissented were made up entirely of Republican appointees to the court.

Sunstein made a parallel study of the dissents of the Republican appellate judges widely thought to be very conservative—including Michael Luttig and Harvie Wilkinson, who were widely regarded as candidates for the nomination Alito received. Sunstein classified the dissents of between 65 percent and 75 percent of these judges as “from the right”; he classified 90 percent of Alito’s dissents that way.

The Washington Post also compared Alito’s record with that of other Republican-appointed federal judges. It compared his votes on different issues in divided-vote cases—those in which judges on the panel disagreed—with those of a national sample of judges appointed by Republicans.6 It reported that Alito voted with the prosecution in 90 percent of the criminal law cases, with the government in 86 percent of the immigration cases, and against the claimant in 78 percent of cases involving discrimination on grounds of race, age, sex, or disability. By contrast, the sample of Republican-appointed judges voted for the prosecution in 65 percent of the criminal law cases, for the government in 40 percent of the immigration cases, and against the claimant in 52 percent of the discrimination cases.

Alito’s written opinions, several of which were discussed in some detail in the hearings, seem to confirm the ideological convictions that these statistics suggest. His dissent in Planned Parenthood v. Casey, the Pennsylvania case in which the Supreme Court later reaffirmed its earlier Roe v. Wade protection of abortion rights, was of course of particular concern. Alone on the Third Circuit Court of Appeals, he voted to uphold a provision of the Pennsylvania law that required married women to inform their husbands before seeking an abortion, except women who could prove that their husbands were not the father of the child or that they would be subject to physical abuse if they told their husbands.

The other Third Circuit judges worried that some pregnant women would not want publicly to charge their husbands with violence or feared abuse that was not only physical. Alito insisted that this did not matter for two main reasons. First, he wrote, most women who had abortions were unmarried anyway; and second, since a state could require teenage women to inform their parents before an abortion, it could, by “analogy,” require an adult woman to inform her husband. These are very bad arguments, and were soon seen as such. As Justice O’Connor said in her Supreme Court opinion in the case, a state cannot be excused for violating even a few people’s constitutional rights, and adult women should not be treated as children. But those positions might very well appeal to a judge who believes, as Alito declared he did in a 1985 Justice Department memorandum, that the Constitution contains no right to abortion and that the Supreme Court’s mistake in recognizing that right should be corrected gradually by seizing opportunities to cut back the protection it offers.

In his Senate hearings Alito tried to distance himself from these earlier claims without disclosing whether they still reflected his opinion. He said that Roe v. Wade is a precedent that deserves respect though he refused to say that a right to abortion is “settled law.” He was equally cagey about his past statements on what might turn out to be an even more important constitutional issue: the president’s claimed power to ignore congressional statutes in conducting what he considers military operations. A number of senators were particularly worried by Alito’s speech to the ultra-conservative Federalist Society in 2000 when he was a sitting judge, in which he said that

when I was in [the Justice Department’s Office of Legal Counsel]…we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president. And I thought then, and I still think, that this theory best captures the meaning of the Constitution’s text and structure…. The case for a unitary executive seems, if anything, stronger today than it was in the 18th Century.

The phrase “unitary executive” has been much used by conservatives anxious to increase the president’s power, particularly in the “war on terrorism.” Justice Thomas, for example, appealed to the doctrine to justify his dissent from the Court’s refusal, in the Hamdi case, to allow the president unrestricted discretion to hold prisoners indefinitely as enemy combatants. John Yoo, then a Justice Department attorney, who has been widely described as the author of the administration’s torture policy,7 wrote after September 11 that

  1. 1

    See my article “Judge Roberts on Trial,” The New York Review, October 20, 2005.

  2. 2

    See Linda Greenhouse, “Justices Reject US Bid to Block Assisted Suicide,” The New York Times, January 18, 2006.

  3. 3

    Alito’s own argument for refusing to offer opinions about principles that might come into play in cases before the Court sounded like a parody: “It would be wrong for me to say to anybody who might be bringing any case before my court…, I’m not even going to listen to you; I’ve made up my mind on this issue; I’m not going read your brief; I’m not going to listen to your argument; I’m not going discuss the issue with my colleagues. Go away.”

    He could have expressed his present opinion on general and controversial issues of constitutional principle and then added that of course his mind is not closed, that he would read and listen with care to any argument offered to show him that he should change his mind. The justices now on the Court have all taken explicit positions on recurring issues; they are not telling anyone to go away.

  4. 4

    In his 1985 job application Alito said that he believed in the protection of “traditional values” and listed, among the organizations to which he belonged, the Concerned Alumni of Princeton, which was notorious for campaigning against admitting women and minority students to Princeton. While in the Justice Department he wrote memos declaring that the Constitution contains no right to abortion and that the attorney general should be immune from civil suits when he illegally wiretaps Americans.

    In the hearings he defended the statements in his application, without disowning them, as designed to impress a very conservative administration. He said he had no recollection of joining the CAP or of why he joined it, and that he meant, by “traditional values,” only that people should be protected from crime. He said his Justice Department memoranda were only the attempts of a lawyer to respect the wishes of his clients: the administration in the abortion memo and the former attorney general in the immunity memo.

    I doubt Alito expected these explanations to be believed: the phrase “traditional values” is code for a narrowly conventional sexual morality. A government lawyer has constitutional responsibilities and should not treat his superiors simply as a “client.” As Senator Biden pointed out, the politics of the CAP were very well known. (A search demanded by Senator Edward Kennedy revealed no evidence that Alito had played an active part in the organization, however.) I also doubt that Alito expected to be believed when he said, when asked his opinion about the Supreme Court’s notorious opinion in Bush v. Gore, that he had not had occasion to think about the matter.

  5. 5

    See “Letter from Professor Sunstein on Alito’s Dissents,” The New York Times, January 10, 2006; www.nytimes.com/2006/01/10/politics/politicsspecial1/sunstein-letter.html.

  6. 6

    See “Which Side Was He On,” The Washington Post, January 1, 2006.

  7. 7

    See David Cole, “What Bush Wants to Hear,” The New York Review, November 17, 2005.

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