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Alito Appearance Marks Shift in Court

February 21, 2006 at 12:00 AM EDT

RAY SUAREZ: And joining us now to discuss what effect Samuel Alito might have on the balance of the court for the foreseeable future, we’re joined by Douglas Kmiec, professor of constitutional law at Pepperdine University Law School, a friend and former colleague of Justice Alito; and Goodwin Liu, a constitutional law professor at the University of California- Berkeley School of Law, Boalt Hall. Professor Liu testified against Samuel Alito during last month’s confirmation hearing.

And, Professor Kmiec, let me start with you. Now that the new chief, John Roberts, and the new associate, Samuel Alito are both seated — confirmed, sworn, the whole thing — how is this court different from the Rehnquist court?

DOUGLAS KMIEC: Well, Ray, I think they’re off to a good start. I mean, this is a court that looks like it’s very well administered, notwithstanding the disruption of confirmation proceedings and the need to fill two vacancies. They issued a number of opinions today. They took four cases, very important cases, for the coming term. They disposed of a large number of cases by denying review, effectively allowing the lower court judgment to stand.

So, first of all, I think you’d have to say the Chief Justice Roberts has this court humming in terms of its operations and administration. In terms of Justice Alito, I think Marcia put it very well. What we saw at the confirmation proceeding is that he answers questions with a very — in a very precise, specific way, and the types of questions that he was asking today were very targeted, statutory questions: What’s the nature of the bodies of water of the United States? What does it mean to discharge waters in terms of federal power laws, which all suggests to me, Ray, that he’s trying to answer legal questions in the manner of a judge on statutory grounds whenever possible without reaching out for constitutional issues. I’d say a seamless transition.

RAY SUAREZ: Professor Liu you, argued against the confirmation of Samuel Alito, and now that he is seated along with the new chief, how is this court in your view different from the Rehnquist court?

GOODWIN LIU: Well, Ray, I think that there is now a consolidated five-justice conservative majority on the Supreme Court. Both Chief Justice Roberts and Justice Alito were appointed by President Bush for the express purpose of consolidating the conservative trend of the Supreme Court’s jurisprudence over the past ten or fifteen years.

I think it’s difficult to say how the court will rule in any given case — that much is for sure. But I think that when you look at the long run of cases, I think the trend line of the law, which has bent, I think, in a generally conservative direction on a variety of issues ranging from environmental laws to civil rights, to I think increasingly important, it will be executive power. That trend will continue for the indefinite future.

And I think Justice Alito will be very central to it. Part of the reasons that I was concerned about Justice Alito based on his record as a third circuit judge over the past 15 years is that he exhibited, I think, very — tended to exhibit comparatively minor concern for individual rights in the face of strong exertions of government power. And that is something that the case that Marcia talked about, the military tribunals case, will put squarely before the center of the court this term, including the very issue of even whether Congress has the authority to deprive the federal governments of jurisdiction, even to hear challenges to detention and to the military tribunal process by an individual like Mr. Hamda, the detainee in that case.

So I think that overall we see a continuation of the generally conservative trend of constitutional law jurisprudence and even maybe bending a slight bit more rightward.

RAY SUAREZ: Professor Kmiec, you heard your colleague up in Berkeley talking about the consolidation of a five-vote conservative majority. But are there things that we don’t know about new associate justices because they’re so heavily bound if they were working in lower-level appellate courts by precedent, things that we don’t know until they’re on the high court, about how they do their work?

DOUGLAS KMIEC: Well, of course. The Supreme Court is the court of last resort, and it has a far greater freedom to reconsider its precedents. But both of these men, John Roberts and Samuel Alito, made some rather specific pledges not to decide cases in a particular way but to be particularly respectful of precedent.

And again, while it is very early, Ray, to make specific statements about where they will fit in terms of the overall history of the court, thus far, the theme of the Roberts court is to handle questions very specifically, very incrementally.

Take, for example, the first abortion case that they decided earlier, the Ayotte case. They sent that back to the lower court with the instruction: Is there a way to preserve as much of this statute as possible, consistent with the constitutional right?

I think today’s decision that Chief Justice Roberts wrote very directly, very elegantly, in the freedom of religion area, which protected the interests of a minority religion, really from an overbroad application of the federal drug laws, would have been a decision that Justice O’Connor would have been very proud to write herself, and I dare say, had Justice Alito participated in it, in that decision his lower court decision suggests he would have conquered as well.

So we see some very careful writing, some very collegial work going on. And unlike Gordon, I tend to think we’re going to see Roberts and Alito form the center of the court, making alliances with Justice Kennedy and Justice Breyer, depending upon the issue that’s before them.

RAY SUAREZ: In the time we have left, let me go back to Professor Liu to talk about the case that was granted cert today — that is, a revisit of so-called partial-birth abortion, the late-term abortion that involves the partial delivery of a fetus before it is aborted. Why revisit this case when it’s being used as precedent in lower courts? Is this an important step?

GOODWIN LIU: It’s a very important case, Ray. The court today granted cert to decide the constitutionality of the federal partial-birth abortion ban, which was passed in 2003. Three years after the court had struck down a similar ban that was enacted in the state of Nebraska, the question in the case concerns whether Congress had any different basis to enact the ban that does not include any exception for the health of the mother.

So in situations where the late-term abortion procedure is medically indicated to preserve the health of the mother, the statute provides no exception for the use of the procedure in that circumstance. This is an important case, I think, because it puts squarely into conflict, at least for someone like Justice Alito, two prongs, I think, of a dilemma. One is that he is on record in his 1985 memorandum seeking a job in the Reagan Justice Department saying that he doesn’t think the Constitution protects a right to an abortion. This is a view that he did not disavow in the confirmation hearings, and I dare say it’s something that many of his conservative supporters expect him to adhere to–

RAY SUAREZ: And Professor, that was the subject of a lot of confrontation during those hearings. I really have it to go back to Professor Kmiec for a very quick response on the partial-birth abortion case. Professor, before we go?

DOUGLAS KMIEC: Well, I agree with Professor Liu, this is a very important case. I think the importance, largely, is related to the fact that when Justice O’Connor struck down the previous statute, she gave some instructions to Congress as to how to write a constitutional one. Congress thinks it followed those instructions, and followed them to the letter, and is somewhat frustrated that the lower courts have disregarded their work. And the question is, I think, how deferential the Supreme Court will be to Congress’ legislative findings.

RAY SUAREZ: Professors, thank you both for joining us.

DOUGLAS KMIEC: Good to be with you.

GOODWIN LIU: Thank you, Ray.