Sam I Am
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Supreme Court nominee Samuel A. Alito, Jr. talked to the Senate Judiciary Committee Wednesday morning about how he learned more about life from what his parents did than from what they said. That same standard surely applies to the nominee himself, whose long and detailed record as a conservative federal appeals court judge speaks louder and more clearly than most of the pabulum he offered to Congress during his two-day question-and-answer rhetoric fest.
Judge Alito has established so far during the course of his confirmation hearing only that he is precisely who he was advertised to be when first nominated last fall by President George W. Bush. From his answers, his demeanor, and even the way the Judiciary Committee reacted to him, it is obvious that the nominee is a smart, reasonable guy who views the law, and the justice system, and the art of judging, very much like the two men the president identified years ago as his models of judicial wisdom: Supreme Court Justices Antonin Scalia and Clarence Thomas. He is thus bound to shore up the Court's most conservative wing, raising its membership from two to three on the nine-person panel.
There is nothing untoward about this. The president told the American people over and over again that he would pick a man like Judge Alito for the High Court if and when he got the chance. And the American people knew, with a Republican President and a Republican Senate, that they would get a Supreme Court nominee who was a conservative Republican. No one can accuse the White House of misdirection on this one. Judge Alito soon is going to take the place of Justice Sandra Day O'Connor and thus make the Court more conservative than it already is. The switch will make a measurable difference in the lives of millions of Americans. And this result was written in stone the night of the election in November 2004.
The nominee Wednesday was more relaxed than he had been on the first two days of his hearing. And Committee Democrats were more intense and focused than they had been on Tuesday, during the first round of questioning. But this changed dynamic didn't alter the course of the hearing. Judge Alito still refused to get specific with his answers on the most important questions posed to him—and at the same time offered numbing details about decisions in cases he had resolved while a judge for the 3rd U.S. Circuit Court of Appeals. It ought to tell you something that even during the second round of questioning by Committee Democrats, Judge Alito was still being asked about a financial disclosure matter that is simply a loser issue for his critics to raise.
In the end, the most vivid, enduring image to emerge from this mix was that of a man who almost always says what he means and means what he says when it comes to a conservative sense of the law. Judge Alito has acted this week like a man who knows he is holding the best cards at the table, which he is, and that all he has to do to survive is to lay them down, one by one, when the moments call for it. I give him full credit for not budging on his views, for apologizing only rarely for his prior mistakes, and for not simply telling the Senators what he thought they would want to hear.
On abortion rights, for example, Judge Alito refused to take even the baby steps that John G. Roberts, Jr. took during his confirmation hearing last September. Back then, the nominee, who is now the Chief Justice, gave the impression that it would take a great deal of proof and persuasion to convince him to overturn Roe v. Wade. Judge Alito, however, repeatedly refused Democratic requests that he acknowledge Roe's strong precedential value and he pointedly refused to declare that there is a constitutional right to an abortion. When Republicans like Sen. Sam Brownback (R-Kansas) pressed him on abortion, however, the judge also passed on the opportunity to trash Roe and its progeny. Remember, just as much as the left wants Judge Alito to protect Roe, the right wants him to ditch it.
So we are left to judge his view on abortion rights by looking at two milestones in his long legal career. Both suggest that he is a likely vote against Roe and is an almost certain vote in favor of restricting abortion rights more than the current Court has. The first such milestone is his now famous 1985 memo, written as a federal attorney working on behalf of the Reagan Administration, when he decried Roe and then outlined a brilliant legal strategy around it. The second such milestone is his now famous dissent in the Casey case, in which he voted to enforce a notification requirement for women seeking an abortion. Nothing he said during the hearing trumps what he actually did while a lawyer and then a judge and there is no point in pretending otherwise.
Similarly, Judge Alito has a long record, as a lawyer and as a federal appeals court judge, of accepting the idea of expansive presidential power. As a lawyer, for example, he heralded the use of presidential "signing statements" designed to offer the courts a sense of the president's view of federal laws—with the idea being that those courts then would have to defer to this view as they do to the "legislative history" of Congressional acts. President Bush now uses such "signing statements" even though they are a slap in the face to Congress and the courts. Then, as a judge, nominee Alito over and over again voted in favor of strong executive authority at the expense of legislative and judicial power. He made these choices long before we learned about torture or domestic surveillance without prior court approval.
When asked during the hearing about presidential authority, Judge Alito agreed that the executive should not have a "blank check" to conduct the war on terror but then refused to disclose where the limits of that power might be. He also was unwilling at the hearing to express dismay as a judge at the way the courts were trashed during the Terri Schiavo saga last winter and expressed little concern when the issue of "jurisdiction-stripping" legislation came up. That's a political trend that seeks to take away from the federal courts the jurisdiction even to involve themselves in controversial cases involving, for example, flag-burning and the Pledge of Allegiance.
The judge intended to be ambiguous at the hearing on these latter points but his own "legislative history" suggests a clear direction. Again, the nominee's deeds as a lawyer and as a judge went far further and deeper than his words to the Committee when it comes to his view of presidential power and legislative authority. And those deeds tell us that when he is on the Supreme Court, not only will he be a strong ally to this president (and perhaps future ones as well) but that he also is comfortable bowing to the legislative branch even when it appears to reasonable people to have spiraled out of control. He will be, in other words, a very deferential Justice at a time when the authority and the independence of the federal judiciary is under concerted political attack.
Again, there is nothing inherently wrong or unjust about this. It's just that no one should pretend that the nominee is anyone or anything different from what his deeds tell us he is. Conservatives on the Judiciary Committee listened for two days and praised Judge Alito for his candor and thoroughness. Liberals on the Judiciary Committee listened for two days to the same testimony and blasted Judge Alito for his evasiveness. But just because Judge Alito serves as a mirror to them doesn't mean he cannot be a window to the rest of us. Good or bad, his record, quite literally, speaks for itself and, if read carefully, tells us precisely what we ought to expect from Justice Alito for the next generation or so. The hearing made for a good show at times. But it should have changed nothing for no one.