BY JEFF JAMISON
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In a rare winter term event, the newly formed Law Students Against Alito (LSAA) and the American Constitution Society (ACS) hosted a panel discussion on the “Alito Nomination and the Roberts Court.”
The panel, moderated by Professor Frank Michelman, featured Professors Cass Sunstein, Charles Fried and Tom Goldstein reflecting on the Supreme Court confirmation process, on judicial nominations generally, and on Judge Samuel Alito’s nomination specifically. Michelman opened the discussion by throwing topics such as the personal impressions of the nominee, the objective criteria that Senators might use to justify their votes, and the type of confirmation process that we might or should expect (This panel took place prior to the start of Alito’s confirmation hearings.) The panelists ran with each of these topics and provided some very insightful thoughts into the nominee, the confirmation process, and the future of American jurisprudence.
Professor Fried started things off by explaining that he was “thrilled when Sam Alito was nominated.” While serving as the acting and actual Solicitor General in the Reagan Administration, Fried was Alito’s boss for about a year and a half. He said that he found Alito to be an “extremely able, clear thinking lawyer who is a beautiful writer.” After pontificating on Alito’s prose, Fried shared some war stories that he believed would shed some light on how Alito would act as a Supreme Court Justice. Fried found it striking that in two cases-one involving abortion rights and the other involving immunity for the Attorney General in cases of illegal wiretaps-Alito urged the Reagan administration not to support Supreme Court litigation, because the Court would not amenable to the positions that the Regan administration as advocating. Fried explained that, while Alito “expressed great sympathy with the position that the politicos were advocating, he was a good enough lawyer to say don’t ask the Court to overrule Roe v. Wade.” Fried explained that the Reagan administration rejected this advice, and “Sam [correctly] predicted that the Court would react with hostility to the position(s).” Fried used this anecdote as “a wonderful piece of evidence that [Alito] is willing to deliver bad news to his clients.”
Fried also opined that these pieces of evidence demonstrate that Alito “is very able person who knows the difference between his own predilections, which are admittedly deeply conservative, and the law.”
Goldstein argued that Alito’s recommendations could also be seen as the tactical judgments of a young lawyer who intended to get the best result for this client. The memos, according to Goldstein, did not embrace a position on Roe, but outlined, “this is how [Alito] would do it.”
In gauging Alito’s prospects and forecasting the type of confirmation battle that could be expected, Fried expressed his belief that the Alito nomination should be granted the same type of respect and deference as the Roberts nomination. Fried found great similarities between Alito and Chief Justice Roberts, minus Roberts’ telegenic dimpled chin. “There is not a dime’s worth of difference between them,” according to Fried. Fried predicted, despite the similarities between the two men, that Alito would face a very different confirmation process because of the individual that he was nominated to replace and the pivotal role that Justice O’Connor played on the Court.
After a quick game of musical chairs for microphone positioning, Professor Sunstein began his part of discussion by explaining, “I want to be for Alito and I hoped to be for him. And I am not yet against him but with regret and some suffering I am very nervous.” Sunstein continued by laying out the criteria that is fueling his nervousness. He explained that it is well established that the Senate can reject a nominee if their views of jurisprudence are unacceptable. The “unfortunate” Miers nomination, according to Sunstein, “established that being ideologically extreme or inappropriate is something that is legitimately considered as part of the appointment process.” Sunstein argued that the idea that ideology does not matter is “preposterous.” Sunstein posited that one must look at “the reasonable range” for a nominee’s ideology.
“The President,” Sunstein suggested, “deserves a degree of respect.” In establishing the criteria for a negative vote on a nominee, he argued that it would be illegitimate for a Senator to vote negatively simply because she “disagrees with the view of the nominee or that the nominee would not vote the way that they were expected.” Sunstein continued, however, “If the views [of the nominee] are so ideological or so extreme or so ill reasoned or so unacceptable in principle, the Senator is perfectly entitled to vote no.” This criteria, Sunstein believes, “should be common ground,” in evaluating a nominee and not ideologically based.
Then Sunstein moved to his evaluation of Alito based on this criteria. Sunstein said that he, unlike Professor Fried, sees great differences between Alito and Roberts. Sunstein suggested that unlike Roberts, whom Sunstein perceives to be a Burkean conservative, Alito appears to be a “movement conservative,” “for whom the Constitution of the United States looks uneasily like the right wing views of the Republican party. ” Sunstein arrived at this view by conducting a review of all of Alito’s dissenting opinions, which Sunstein argued is the best measure of what a judge will be like on the Supreme Court, since majority opinions tend to be preordained or close to preordained, by circuit court or Supreme Court precedent.
Sunstein did start out by praising Alito’s dissents as “more than competent.” He added that, unlike Fried, he does not find Alito to be “a beautiful writer.” On the whole, he found Alito’s opinions to be “above average, not brilliant opinions, but smart opinions.” He added that Alito’s opinions are narrow and cautious, “he does not posture or speak ambiguously like Scalia or Thomas.” Sunstein also found Alito’s opinions to be “far from reckless. They are lawful. He knows what he is doing and stays within the bounds of the law.”
Sunstein then raised his concerns about Alito’s voting pattern, which he called “alarming.” Sunstein found that Alito, “in an overwhelming percentage of cases, is dissenting from the right and rejecting opinions written by Republican nominees. Time and again, he is dissenting from the right and very rarely from the left.” According to Sunstein’s research, “There are simply no cases in which Alito’s understanding of the law departs significantly or dramatically from his political convictions.” Sunstein’s problem is that Alito does not “surprise him.” He explained that from time to time various conservative judges and justices, like Scalia, Ludwig, Posner, and Wilkinson, will surprise you with opinions that are not aligned with their political convictions, but that is not the case with Alito. According to Sunstein, Alito has “a [voting] pattern that does not look like anyone us I have seen in the study. A pattern in which his political judgments and legal judgments are stunningly in alignment.”
Sunstein concluded by reserving his ultimate judgment about Alito’s chances or even his own opinion of the nominee. “I don’t want to say that he is lawless or on a mission. I don’t even want to reach a bottom line about what ought to be done with confirmation. He is clearly qualified and honest and a good guy and no one should question his character.” He also commended Alito for a lifetime of public service. Sunstein suggested that the ultimate “question is whether the Senate should confirm someone whose voting pattern…is so highly and demonstrably ideological.
Goldstein picked up on Sunstein’s discussion about Alito’s personal integrity by arguing that it, “sheds some side light on how activist he would be as a Supreme Court jurist.” He believes that when nominees “adhere closely to the law it is a good indication that they are not out there to impose their own view of the law upon American society and write it in
to the Constitution.” Goldstein added that he, like Fried, finds “less daylight” between Roberts and Alito, as far as their judicial views go.
Goldstein then shifted gears to discuss the confirmation hearings of Roberts and the nomination of Alito. Goldstein was pleasantly surprised that the “Congress was outshining the American public,” in both these areas. He was impressed by the openly honest approach that Senators from both sides of the aisle approached the Roberts confirmation. Goldstein perceived this as good news, in the short term, for the judicial nomination process.
Goldstein then raised some serious doubts about the long-term prospects for judicial nominations, due to the advertisements for and against Alito. Goldstein remarked that the telegenic qualification that advertising carries with it alone would disqualify him from consideration for the Court. Fried chimed in that is why he is not on the Court. Getting back to the seriousness of his point, Goldstein added, “The idea that Supreme Court nominees are more like political candidates will incline the American public, particularly young people, to think that a Supreme Court nominee is someone who should have a good advertising campaign.” Goldstein also added that the integrity attacks in these ads against the nominees are unfair.
Goldstein concluded with a brief discussion about the impact that the Alito confirmation would have on the Court. He attempted to assuage the liberals in the audience by explaining, “We are not on the brink of a radical reshaping of American law. There is no genuine prospect in the next 5-10 years that the Supreme Court will overrule Roe v. Wade or the Commerce Clause jurisprudence. It is not about to jet off to the right in a very significant way.” He did, however, warn, “This is a fight over the long term. It can set a trend. While this one vote will determine the shape of the Constitution, I do think that the people that we put on the Supreme Can over the long term can over the long term very radically change what we are as a country.”
A video of the panel can be found on www.hlacs.org.