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Assessing the Alito Nomination

October 31, 2005 at 12:00 AM EDT

MARGARET WARNER: What does Judge Samuel Alito’s record tell us about what kind of Supreme Court justice he’d be?

For that, we turn to Douglas Kmiec, professor of constitutional law at Pepperdine University Law School. And Pam Karlan, professor of public interest law at the Stanford Law School.

Welcome to you both.

MARGARET WARNER Pam Karlan, take a look at that record. What does it tell us about Judge Alito’s judicial philosophy, the philosophy he’d bring to the court if confirmed?

PAM KARLAN: Well, I think it tells us that he will be quite a conservative justice if he’s confirmed. There are a number of cases where we know that he’s to the right of where the Supreme Court itself currently stands and the way we know that is that the Supreme Court and he disagreed about a legal issue. That’s true in abortion. It’s true with regard to congressional power under the equal protection clause. It’s true just last term with regard to the right of criminal defendants to effective assistance of counsel.

MARGARET WARNER: Doug Kmiec, would you agree — a conservative justice he’d be, and if so in what sense?

DOUGLAS KMIEC: If conservative means that he pays attention to the text of the constitution and the laws that the Congress has written, then I think he’s going to be conserving both of those values.

Yes, there’s been some disagreements between the judge and the Supreme Court, but it’s largely because in these cases the judge was hearing the case first and the Supreme Court was making new rules that they applied after the fact. So you can’t really blame the judge for not being omniscient.

This is a very careful judge, reads statutes carefully, reads the text of the Constitution carefully, does his homework. I think he’s going to be very much like Judge Byron White, a very probing questioner from the bench, somebody who asks questions that he really needs answers to.

MARGARET WARNER: Well, Professor Kmiec, today Gary Bauer, a noted social conservative, called this a grand slam home run. Are social conservatives right to be so confident or to be confident that he would rule their way on these socially conservative issues they care most about — abortion, church/state, things like that?

DOUGLAS KMIEC: Well, we know on church/state that he takes the view that the religion clauses are to protect the freedom of religion, which doesn’t mean that there should be a hostility manifested toward religion, but that government should be accommodating. We know that he’s protective of free speech.

I think when Gary Bauer says it’s a home run, I think what he means — at least I hope what he means — is that if a judge follows the law, social conservatives will have an opportunity to have their policies vindicated not because Judge Alito will impose them from the bench, but because Judge Alito won’t manipulate the law to defeat them from the bench.

The democratic choices that social conservatives can convince their neighbors to adopt in favor of life, in favor of the protection of the family, in favor of civil rights will, in fact be adopted and the courts will allow them to go into effect.

MARGARET WARNER: Professor Karlan, expand more — pick up on that in terms of the issues of interest to social conservatives. And you mentioned abortion earlier. Point to a couple of decisions or at least one, I think the Planned Parenthood versus Casey one, is the one most often cited and what it tells us about Judge Alito’s approach to the abortion issue.

PAM KARLAN: Sure. Judge Alito was on the court of appeals at the time of the Casey case, which as you know is the currently reigning view of abortion in the Supreme Court. And what we know about Judge Alito is that he has a more restrictive view of a woman’s right to choose than the current Supreme Court does.

And the way we know this is that he voted to uphold a provision that required spousal notification. And the Supreme Court voted to strike that provision down. Another thing we know– and this is where I think perhaps Doug Kmiec and I disagree a little– is it is not the case that Judge Alito is invariably deferential to the democratic process.

So, for example, he would have held unconstitutional the provisions democratically enacted by Congress of the Family Medical Leave Act that applied to require states to give unpaid medical leave to their employees.

Now the Supreme Court with both Justice O’Connor and Chief Justice Rehnquist in the majority voted to uphold those provisions. And one of the reasons why I think it’s incorrect to talk about people as if there are people who read the text of the Constitution and people who don’t is that social conservatives and movement conservatives have read into the 11th Amendment of the Constitution, which gives sovereign immunity to states against democratically-passed laws, words that aren’t there, and they read the wordy “equality,” which is in the Constitution, the word “equal” differently from liberals.

MARGARET WARNER: Professor Kmiec?

DOUGLAS KMIEC: Well, again, Professor Karlan is right. We do disagree, but we disagree in this sense. The Supreme Court had a different point of view than Judge Alito because again they changed the law or they changed their perception or interpretation of the law —

MARGARET WARNER: I’m sorry. You’re talking on the abortion case, the Planned Parenthood versus Casey?

DOUGLAS KMIEC: Yes, very much on Planned Parenthood versus Casey. But also the other example that Professor Karlan gave, the Family and Medical Leave Act. The issue there is whether or not an individual citizen can sue the state directly without the state’s waiver or consent. The 11th Amendment has been construed by the court to say, no, as a general matter. And that was the law as it existed when Judge Alito decided that case.

But the Supreme Court decided on particular important issues such as fundamental rights and gender discrimination that those suits were permissible but after the fact, after Judge Alito had given his opinion.

And so what we actually have here, Margaret, is an example of a judge who is carefully following the Supreme Court precedent and applying it within the scope of his appellate role and not reaching out to decide issues that are not before him or to change the law in a way that an appellate judge should not do, so we have a judge who is again very, very careful and respectful of the law as it has been decided in precedent and as given by the Congress.

MARGARET WARNER: Professor Karlan, the other —

PAM KARLAN: Margaret, I disagree with that.


PAM KARLAN: I don’t think that Judge Alito was simply failing to see the Supreme Court changing the law. I think the question was, the Supreme Court in Casey moved slightly to the right but Judge Alito would have moved much further to the right.

And so I think it’s important to understand — to go back to Gary Bauer’s point about the home run here, that we’re talking about the Supreme Court as a team.

And Judge Alito, if you think of Justice O’Connor as being in some sort of center field, Judge Alito would be in right field. And the question I think for the senators and for the public is how far to the right he will move.

MARGARET WARNER: All right. Let me ask you about another case. And I’ll stay with you, Professor Karlan, for a minute. We’re just about out of time. But this is the one involving — it was ACLU versus Schundler, and it was in Jersey City and it was about a display at Christmastime on city property that had a crèche, a menorah and Frosty the Snowman. And he essentially ruled that that did not violate the separation of church and state.

Professor Karlan, what does that say about his view of church/state issues?

PAM KARLAN: Well, it started off it was just the crèche and the menorah. And the court of appeals on which he sits agreed that that was religious establishment which the flip side of what Doug was talking about. There’s free exercise and there’s establishment. Then the question was: Does adding Frosty the Snowman change what is a religious display into a non-religious display?

And Judge Alito thought the additional of Frosty the Snowman and Santa Claus meant this was no longer religious. It was now simply a holiday display.

And so I think he will not be particularly robust in his views of the establishment clause.

DOUGLAS KMIEC: Which means he won’t be particularly hostile to religion; he’ll be accommodating of it. This was a display that had a banner that proclaimed the city’s commitment to diversity. It had Frosty the Snowman as you said, a crèche and a menorah. Common sense I think would tell the person on the street that this is not coercion or belief of practice under the law. This is not favoritism of one faith over another. This is not privileging religion.

This is accommodating faith, which is important to the republic and its history and to its people and which the First Amendment allows. That’s all Judge Alito decided.

MARGARET WARNER: Professor Kmiec, in literally 20 to 30 seconds, you know this man because you were together in the Reagan administration. He’s been called “Scalito,” little Scalia. Is he like Scalia in temperament or is he really quite different?

DOUGLAS KMIEC: I think he would take that as a compliment but he is quite different in this respect: Justice Scalia, to — many people believe to his credit — has an intellectually theory that overarches all of his work.

Judge Scalia takes — I mean, Judge Alito takes one case at a time. He studies the record. He studies the facts. He sees how the law applies to those facts and checks the precedents. He doesn’t decide anything more than necessary, so while there is some similarity between the two, Judge Alito is, in fact, the judge’s judge. He would very much like that characterization and it is very true to who he is.

MARGARET WARNER: Professor Douglas Kmiec, Professor Pam Karlan, thank you both.