Alito Will Be Confirmed

I have been watching the Senate Judiciary Committee confirmation hearings to determine the qualifications of Judge Samuel Alito to serve on the U.S. Supreme Court. These hearings bring forth many issue for future discussion here at Sense. But for now, here is my opinion on how Alito is coming across and my initial views on the issues as handled by him, and why I expect he will be confirmed.

Sam Alito is not a man of any particular warmth, empathy, charm or sense of humor. But he does come across as attentive, responsive, knowledgeable and informative. His responsiveness, though not complete, is refreshingly more extensive than recent candidates, particularly John Roberts whose mantra was to decline to respond because a future case might involve the issues about which he was being queried.

Alito is a very capable judge who will be confirmed for the Supreme Court and who will decide cases based on the facts of the case and the technical application of the legal arguments presented, guided by prior Supreme Court decisions. As a judicial technician, he obviously is an impressive expert. Lacking empathy and lacking experience as a trial judge, he is very unlikely to let sympathy for any litigant affect his views, a point demonstrated by his 15 years of decisions on the Court of Appeals. But he is also unlikely to harbor significant prejudices which will affect his opinions.

The consensus top issue is Roe v Wade and whether or to what extent that ruling on abortion might be changed. Alito was evasive about his personal position, and somewhat hesitant to fully endorse Roe as settled law. Unfortunately, when he did set out a list of criteria to be used in deciding whether to overturn a prior case, the Senators, who were more interested in making their own speeches and following their own agenda, failed to engage in a discussion of those criteria with Judge Alito. I think Alito is open to arguments to whittle away at Roe, but not to outright overturn it.

Alito agreed that even the U. S. President is not above the law, but the hearings did not shed much light on what laws the President might be able to disregard, especially in the name of “national security”. In fact, there is not much case law on this subject, and if Bush can be replaced with a more law-abiding President, the issues will recede. Alito might be inclined to give a President a little more leeway since his professed admiration for the ROTC indicates an inclination to favor the military mentality.

Senators of both parties have been critical of the Rehnquist Court for trying to restrict the power of Congress to legislate. One case of concern was Alito ruling against a Congressional ban on sub-machine guns. Alito explained his ruling was based on Congress failing to include a proper statement of fact finding in the legislation - a technical reason which Congress could easily remedy. There is no indication Alito is on a mission to restrict Congress.

The case where Alito upheld a strip search of a ten year old girl was another technical matter. The question was whether the search warrant for the premises of a drug dealer allowed searches of others present. The affidavit on which the warrant was based, Alito decided, had been incorporated in the warrant and technically allowed the search, to look for contraband the dealer might hide on other persons, including children. Though Alito made reference to concerns for the child, his innate lack of compassion was apparent, even though his decision was probably sound.

In a 1985 application for a lawyer job with the Reagan Administration, Alito stated pride in his membership in a conservative group opposed to the move away from a white male student body at his Alma Mater, Princeton. It seems to me he joined only to suck up to his prospective employer, and he had no real interest in the group or agreement with its positions. His only professed recall is that he may have joined because he had been upset when the ROTC program was kicked off campus during his time at Princeton. Since receiving a lifetime judicial appointment in 1990, he has had much less reason to suck up, and he has given no indication of sucking up to Bush to get this nomination.

Criticism of Alito as coming down against the little people in labor and discrimination cases may be ignoring the fact that the laws are heavily weighted against little people to begin with, and there is not much the courts can do about that. Granted, he is not likely to be an “activist judge”, as the conservatives say, and make rulings that go beyond what the law currently requires, but there is also no particular indication he will be a negative activist, trying to further peel back rights of little people.

A claim that Alito heard a case in which he had a conflict of interest was adequately addressed by him in pointing out that it was one case that slipped through the cracks in 15 years on the bench, and that he corrected the mistake by getting a new hearing for the parties with new judges, who then ruled the same way Alito had.

Here are some topics for further Sense discussion, prompted by these hearings: Roe, abortion, overturning prior case law, curbing abuse of Presidential power, and racial discrimination [for all the concern expressed during the hearings for people of color, I noticed that the room was packed full of people, all of whom were white except one young female staffer and a male member of the extensive pool of photographers].