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Law Professors Analyze Alito Hearings

January 12, 2006 at 12:00 AM EDT

RAY SUAREZ: And joining us to provide some insights on how the Alito confirmation hearings have proceeded this week are Ronald Allen, professor at Northwestern University’s School of Law in Chicago and Martin Flaherty, professor at the Fordham University of Law in New York.

And Professor Flaherty, they touched on a lot of subjects today, executive power once again, affirmative action, capital punishment. Any highlights for you in today’s testimony?

MARTIN FLAHERTY: Nothing in particular; one thing that was interesting to me was how at long last the senators tried to, the Democrats anyway, tried to start framing the issue in terms of who is going to replace Sandra Day O’Connor as the swing vote.

But Justice Alito, I’m jumping the gun, Judge Alito said he would follow her methodology. He avoided saying whether he would serve the same centrist role that she has played.

RAY SUAREZ: Is that a legitimate line of questioning in your view given that there is no requirement that one judge who succeeds another be like that judge?

MARTIN FLAHERTY: No, that’s right. There is no requirement along those lines. But I very much agree with what Professor Gerhardt said on the tape — that it is very much the role of the Senate to sign off in this process. And I think it is entirely legitimate for the Senate to consider judicial philosophy and ideology.

RAY SUAREZ: Professor Allen, first let me hear you on the Justice O’Connor issue and then your impressions of today’s testimony.

RONALD ALLEN: Well, I agree entirely, actually. It’s perfectly appropriate and, indeed, I think correct and right for the Senate to inquire into judicial philosophy and even more generally political philosophy of appointments to the Supreme Court. I mean this process is the way by which a democratic society in one sense keeps its control over the judiciary.

In terms of the hearings, they were pretty unremarkable and have been pretty unremarkable throughout the last three days, frankly.

RAY SUAREZ: Well, you mentioned the Senate’s right to inquire on judicial philosophy and even, you suggest, political philosophy. Is there an obligation for the nominee to answer?

RONALD ALLEN: I — it’s hard to talk about obligations in this context. I mean, I think this is a situation in which the Senate does what it wants to do. The nominee does what it wants to do. And then the Senate has to make up its mind — in this case first the committee and then the Senate.

I think it is certainly appropriate. And I would advise individuals who have been nominated to try to be quite forthcoming about their political and judicial philosophies and their interpretive philosophies.

The question, of course, is when that starts to get too close to how you would decide individual cases. And I also agree that justices, prospective justices should not answer that question. They shouldn’t — they should shy away and avoid answering the question of how they will come out on specific cases.

Now where that line is drawn is a complicated one. But I want to — even though I think I’m quite a fan of Judge Alito, I think it’s perfectly appropriate for the Senate to inquire and to inquire systemically into their general jurisprudence. And if there is anything regrettable about these hearings, it’s how badly the committee did that, quite frankly.

RAY SUAREZ: Professor Flaherty, how do you respond to that suggestion that the committee didn’t do a very good job, and how would you jump off on Professor Allen’s point about where the line gets drawn on how a nominee answers a question?

MARTIN FLAHERTY: I actually agree with Professor Allen entirely. I think the committee has done a bad job.

There is an obligation for the nominee to answer with regard to judicial philosophy and interpretation if the Senate makes an obligation. But essentially the senators have not said that there will be any consequences if you don’t answer these questions.

The Democrats could have said look, I wouldn’t vote for you unless you answer these questions, or we’ll even filibuster if you don’t answer these questions. But they didn’t do that.

And this would apply to both parties too. There was the same problem with Judge Ginsburg — then Judge Ginsburg’s nomination hearings.

And what the Senate has done, essentially, is taken itself out of the appointment and nomination and approval process here.

RAY SUAREZ: But isn’t there value or do you see any value in questions where the nominee was quizzed mostly by Democratic senators but occasionally by Republican ones on case law, on his own previous decisions, on precedence, isn’t there something that emerges over the days of the hearing that even if the nominee is answering in a very careful way, you learn about him?

MARTIN FLAHERTY: I think those have been very bad proxies for figuring out what the nominee is really all about. I think a much more straightforward line of questioning would be appropriate.

Now I agree nominees shouldn’t answer about cases that are pending or cases that they are likely to hear specifically. But I think it’s entirely appropriate to ask them about what they feel about cases like Griswold, Roe and related items.

I think we’ve erred far too much on the side of ostensible judicial neutrality and not enough on the public’s right to know.

RAY SUAREZ: Professor Allen, from the Democratic side of the panel we heard the complaint that we scarcely know more about Samuel Alito than when this process began. Is that a fair comment?

RONALD ALLEN: — (audio difficulties) — intelligent, extraordinarily intelligent, frankly, highly skilled man of integrity, responsible, mature, and all that. And frankly those issues did come out in the hearing. But we did know that.

What didn’t come out in the hearing was, number one, any kind of deep reflection about somebody’s judicial – jurisprudential or political, philosophical questions we were referring to.

And number two, there was some concern that he did not have the sort of personal smoothness and personability of a Roberts and might crack under pressure. Interestingly, he has not cracked. If anyone has cracked, it has been various members of the Senate Judiciary Committee, which I don’t think has held themselves up to great repute here in this episode.

RAY SUAREZ: Professor Allen, several members of the panel tried to get Judge Alito to talk at length about whether it was constitutional to execute someone who had been found guilty of a capital crime but was, in fact, innocent.

For non-lawyers watching that, it might have been a head-scratching moment. What were they trying to establish there, do you think? And why is that important?

RONALD ALLEN: Well, there is a serious question about the role of claims of innocence in a capital sentencing process. I mean, it is a serious question throughout the criminal process generally, but is particularly acute with respect to capital cases, obviously, because the possibility of execution looms.

One of the difficulties is, is that in an effort to avoid execution criminal defense — the criminal defense bar, criminal defendants try to delay as much as possible by filing motion after motion and so on, including repetitive motions about new evidence and so on and so forth.

There is a point at which there has to be finality in any system and that then always raises the question well, okay, you’ve gotten to what you think is a final position but all of a sudden there is a new claim of innocence, what do you do.

If you have no constraints on that process, then you can never execute anybody. That would be fine, obviously, from some points of view. But from other points of view it is not. And so you have to bring it to an end.

So that question, although it appears to be sort of esoteric and detailed and technical actually has a tremendous import and is part of the debates right now that are going on across the country about the capital punishment process.

RAY SUAREZ: Professor Flaherty, in that and in other issues where the Democratic senators were trying to demonstrate excessive deference to governments, to other courts, to prosecutors, did they manage to make that stick?

MARTIN FLAHERTY: I don’t think so. I mean, I agree that I think Judge Alito did very, very well. He came across as very temperate, very knowledgeable. You know, the Democrats’ strongest point was essentially results — that he seems to consistently vote on the sides of prosecutors disproportionately, whatever the baseline might be — sides with executive power, things like that.

You know, I’m not sure whether just counting results was enough to make it stick. I think it’s a significant thing to consider. But how that played out more generally I don’t know.

RAY SUAREZ: And any observations as this quizzing of the nominee came to a close on the process itself?

MARTIN FLAHERTY: Well, you know, I think that for both parties, unless the Senate really starts to say that there will be consequences when nominees fail to answer the kinds of questions we’ve been talking about, we’re going to continue to get these kinds of hearings where there are hundreds of questions, but very few relevant answers.

RAY SUAREZ: And Professor Allen, Sen. Biden this morning suggested the process is broken and needs to be fixed. What do you think?

RONALD ALLEN: Well, I don’t think that’s right. I mean I think Sen. Biden is complaining about the fact that this particular series of hearings didn’t produce sufficient ammunition to stop this particular appointment.

But it was the threat or the risk of this kind of a process that did stop the Miers appointment from going further, for example. And it soon became clear that she was simply would have withered and collapsed under the pressure of this kind of an event.

So I don’t think you can judge it just by this particular set of hearings. This is a very distinguished man, very skilled, very knowledgeable, very intelligent, and deserves to be confirmed, even though I, like others, would have preferred greater detailed pressing on his jurisprudential and political views.

You know, I think, in general, it serves a very useful purpose to subject these people to the kind of scrutiny that they have been subjected to. And, remember, it’s not just these three days. The scrutiny has been going on since the nomination — enormous effort invested in interviews and hundreds of people across the country reading everything that he has written and so on and so forth.

The hearings were a little disappointing because, in fact, he is so good and they are not so good. But in general, I think it’s a pretty salutary process and really it should be viewed as quite a pride of our way of conducting our governmental affairs.

RAY SUAREZ: So briefly, you would concur with Professor Flaherty that the senators should demand better answers and hold nominees more to account?

RONALD ALLEN: I think it’s somewhat different. I think they should ask better questions.

The problem isn’t that they were demanding answers; the problem is they were unsophisticated in their questions.

In both this case and the Roberts case it was almost like an uneven fight where the individual nominees were so far better than the collective intellect — at least of his skeptics, i.e., in these cases the Democrats.

There were lots of interesting questions here that could have been probed that didn’t – that wouldn’t get too close to individual decisions of cases that might come up having to do with the nature of precedent, interpretive theories, how you handle problems that simply weren’t thought of by those who drafted the Constitution and the like.

None of this was there. And it was just lack of preparation or lack of sophistication or lack of knowledge on the part of the senators, frankly.

So I think it’s not — I don’t think it is appropriate to criticize the process from the point of view of this nominee not answering questions. I think it’s the failure of the senators to take full advantage of what the opportunity presented.

RAY SUAREZ: Professor Allen, Professor Flaherty, thank you.