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Supreme Court Nominee Alito’s Judicial Views

December 28, 2005 at 12:00 AM EDT
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RAY SUAREZ: As a lawyer in the Reagan administration, Supreme Court nominee Samuel Alito wrote several memos, briefs and letters that have garnered widespread attention since their release by the National Archives earlier this month. In these documents, Alito advised his superiors at the Justice Department on matters ranging from executive privilege to abortion rights to civil rights, subjects that are likely to take center stage at his Senate confirmation hearings in two weeks.

Meanwhile, advocates and court watchers are pouring over the writings, hoping to glean how Alito might rule from the high court.

I’m joined now by two scholars who have been doing just that: Jeffrey Rosen, professor of law at George Washington University and legal affairs editor at the New Republic; and Stuart Taylor, a columnist with National Journal and a fellow at the Brookings Institution.

And, looking over these vast number of documents that have been released in the last month, are you getting a better sense of who Samuel Alito is?

JEFFREY ROSEN: It is possible to get a sense, and it’s interesting to compare them with the Roberts memos. In many ways, Alito’s seemed less deft; I think in particular of that job application that he sent to Attorney General Meese where he said, “I am a fierce conservative. I’m proudest of my opposition to abortion.”

There was an earnestness and a rawness that we didn’t see in the wittier Roberts. On the other hand, you have the sense in these memos that Alito is a careful lawyer, always strategically advising the Justice Department to choose conservative and prudent strategies, rather than a fire-breathing ideologue, and in that sense he seems a little bit more reassuring than I might have feared.

RAY SUAREZ: Stuart?

STUART TAYLOR: I’d say I agree largely, but this application in which he said: I am a Reagan conservative, essentially, and I’m proud of what we did on abortion and racial quotas, I don’t read that much into it other than he was a Reagan conservative. He was filling out a job application for a political appointment — he’d been a civil servant — and he was asked on that application, “How can you show us that you’re in tune philosophically with this administration?”

And so he did that. He said that he — there was no — the Constitution does not protect the right to an abortion — obviously, he thought that then. He’ll have to explain whether — what he thinks about that now, whether he thinks Roe vs Wade should be overruled. He said he was proud of opposing racial and ethnic quotas; he’ll be questioned closely on that.

He was critical of the Warren court. But I don’t think it shows him to be a guy who’s going to get on the Supreme Court 20 years later with some kind of conservative agenda to revolutionize the law, as you might think from reading some of the papers.

RAY SUAREZ: Well, let’s look at some of the specific memos: one from 1984 dealt with whether government officials should have blanket immunity from lawsuits when authorizing wiretaps. In the memo he said, “I do not question that the attorney general should have this immunity.” Jeffrey Rosen?

JEFFREY ROSEN: This is a very interesting memo. On the one hand he was prudent. He said, “Don’t press the claim of immunity too hard because we’re likely too lose on that point.” In the end, he was right because they rejected his advice and the Supreme Court said no, the attorney general can’t look for some — a plot to kidnap Henry Kissinger and engage in domestic surveillance, breaking the law, and have blanket immunity.

On the other hand, since it wasn’t clearly illegal when he did that, he’s off the hook. But privacy advocates sort of focused on this memo because they say that he’s actually pretty sympathetic about the idea that the Foreign Intelligence Surveillance law – this is the law that’s at the center of the current Bush controversies — clarified the landscape and reduced the possibilities of litigation.

And they think that sympathetic reference to law, combined with the fact when he was a Princeton undergraduate, Alito was a big privacy advocate, and wrote a paper basically saying that there should be a federal court of warrants that should have to authorize every wiretap before domestic surveillance is allowed, that these two things taken together might show that he has a secret privacy instinct.

Now, on the other hand, as a judge, he has authorized secret surveillance cameras of suspected bribery suspects and has not been very strongly civil libertarian. He said in his job application letter, I believe in strong deference to the executive, when it comes to crime, and his record there is pretty tough, too.

But I think what we can take from this memo is it that he was giving good legal advice when he said don’t go for broke in arguing for immunity, but he didn’t tell us much more than that.

RAY SUAREZ: Stuart, what do you make of that?

STUART TAYLOR: I agree with Jeff, but let me take a little more simplistic take. This memo has been widely represented by his opponents in the media as evidence that, oh, he approved wiretaps, he’s encouraging wiretaps. That’s flat out false. The memo had nothing to do with whether wiretaps should be authorized or not.

The only thing he did in that memo that’s generated controversy is suggesting that the Attorney General of the United States, who had ordered wiretaps that later turned out to be illegal, should be absolutely immune from civil lawsuits. The people said, hey, he wiretapped me, shouldn’t be able to sue him for money.

That is exactly the same position that the Carter administration’s liberal solicitor general, Wade McCree, had taken in the same general case. It is the position that anybody working in the job Alito had would have taken, and the fact that Alito took that position is utterly unremarkable. And I think – I think it’s been a distortion to suggest that it’s anything beyond that.

RAY SUAREZ: Well, Stuart, in June 1985, Alito was a 35-year-old assistant to the solicitor general and he writes in a memo advising on abortion: “The government should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether and, if so, to what extent that decision should be overruled.”

And further said: “The brief makes our position clear, does not even tacitly concede Roe’s legitimacy, and signals that we regard the question as live and open.”

STUART TAYLOR: Yes, now, that is more significant, I think, as is a related statement he made in the same job application Jeff mentioned earlier in which he said the Constitution does not protect a right to an abortion, clearly expressing his own legal view.

It’s clear in that 1985 Alito thought that Roe versus Wade was wrong. It’s pretty clear that he thought it should be overruled, that that wasn’t just being a lawyer for the administration.

The question that that leaves unresolved is whether he thinks now that it should be overruled. He probably still thinks it was wrong. That’s not the sort of thing people change their minds about – and, by the way, many pro-choice liberals have always said that Roe versus Wade was wrong.

Where the rubber meets the road is okay, what are you going to do now? Will you overrule it? And I think it’s far from clear that Alito would overrule it now. In fact, the solicitor general, to whom he was writing that memo that you just read from, in ’85, asked the court in 1985, we want you to overrule Roe versus Wade, Charles Fried is his name, the same man now says well, it’s been 20 years, it’s been reaffirmed; it should not be overruled.

My guess is Alito would say the same thing when he gets the issue.

RAY SUAREZ: Professor, far from clear that he would write to overrule it now?

JEFFREY ROSEN: Far from clear, but I’m not sure that I’m reassured by anything in his record that he wouldn’t.

In that memo, after all, he was pretty canny and strategic, he said: I think Roe should be overruled, but let’s tell the court, even if it’s not overruled, you can still uphold all of the restrictions that you’ve been striking down in the past and basically reach the same result without a clear overruling of Roe.

That’s a lack of transparency that some of the fellow justices shared, that might suggest you can keep Roe on the books but really as an empty shell.

It’s also interesting that all of the provisions that he was arguing in favor of back in 1986, the Supreme Court struck down at the time but would then uphold in the Casey case in 1992, and in this sense, I think we have a better sense of his abortion jurisprudence from what he’s actually decided on the bench than in this memo.

But the truth is, although Stuart is right that the central question is his view of the previous weight of precedent, there’s nothing in his record that would suggest that he agrees with Charles Fried that Roe has become a super precedent, though he’s making reassuring noises to Sen. Specter. And this is just a question that the Senate’s going to have to press him on very, very closely.

RAY SUAREZ: There’s a degree to which these memos have a feeling, like that old pot-boiler cliché, “torn from the headlines,” “executive privilege,” “wiretap,” “abortion,” and “racial quotas.”

In a job election application letter, written to then Attorney General Sam Meese, young Samuel Alito wrote that he was “particularly proud” of his contribution to cases in which the administration argued “…that racial and ethnic quotas should not be allowed…”

Jeffrey Rosen.

JEFFREY ROSEN: This was such an interesting case that he was talking about that he was proud of. It’s a case where unions had made an agreement that black and white schoolteachers who were equally qualified could be fired or hired on the basis of race. Basically, the black teachers could be kept on ahead of equally senior white teachers.

That’s about the most controversial use of preferences available, and the Supreme Court struck it down; they said because there was no history of past discrimination, this couldn’t be allowed. But at the same time, they said you don’t have to prove in advance that there was past discrimination, as long as there’s some evidence of it, you can have affirmative action.

Along the same lines, Alito as a judge joined an opinion saying that you couldn’t fire a white teacher ahead of an equally senior black teacher. Again, this is something that many people consider the most controversial use of affirmative action because all the burdens of the preferences fall on one individual.

Now, what we don’t know from these two cases, the YGAT case, which he was joined as a lawyer in this other case, is what he would do about affirmative action in schools, universities. This is the central question before the courts. Justice O’Connor was at the head of a five to four decision upholding this.

In the YGAT case that Alito lost essentially, O’Connor signaled that you might be able to use role models as a ground for upholding affirmative action in higher education.

No evidence that Alito accepts that theory, so I would just guess, based on this record, that he would be less sympathetic than O’Connor to affirmative action and higher education, and, therefore, it might be actually be vulnerable to being struck down.

RAY SUAREZ: Stuart, how does that look to you?

STUART TAYLOR: It’s not a bad guess, but Justice O’Connor became much more favorable to affirmative action racial preferences later in her career than earlier in the career. Her vote in the case we’re talking about was I think essentially the same position that Alito said he supported — racial and ethnic quotas should not be allowed.

Very few people argue in favor of racial and ethnic quotas. They’ll argue for softer forms of affirmative action or racial preference, and what he thinks about those softer forms is not clear. Jeff mentioned the later case in which as a judge he ruled in favor of a white school teacher who sued because she was laid off on grounds of race. That case was such an embarrassment to the civil rights community, the fact that they actually paid off in a legal settlement the white plaintiff in the case to prevent the Supreme Court from deciding it.

The Clinton administration, which initially supported the firing of the white teacher, reversed its position and asked the Supreme Court, please, don’t take this case, because they were embarrassed by the position. So if you think that the Clinton administration was too right wing on affirmative action, well, you should vote against Alito.

RAY SUAREZ: Professor Rosen, during Justice Roberts’ confirmation hearings, he said, basically, about the 90s, well I was in private practice and representing the interests of my clients and of the 80s, he said, well, I was working for my bosses and doing what they wanted me to do — and presented himself as — maybe a blank slate is too harsh, but somebody whose own private convictions on these matters could not be understood from his right. Will Samuel Alito be able to do the same?

JEFFREY ROSEN: It will be harder, because we have much more evidence of what Samuel Alito’s private thoughts are. No one could have any doubt what his political philosophy is. He laid it out in a letter to the attorney general, which said, here’s what I believe: limited government, deference to the police, the ability of states to enforce traditional moral values. You can’t walk away from this.

Now, the question is, can he convincingly say, I’m now a judge. I was then a lawyer. The two roles are different. Sure, and they, and everyone knows that. But in the case of Roberts, there was a better worked out judicial philosophy of modesty and deference, and, therefore, one could trust that he would differentiate. In the case of Alito, we don’t yet know what his judicial philosophy is, and it might be harder for him to walk away from these previous statements.

RAY SUAREZ: Is he going to have tougher hearings, Stuart, because of this paper trail?

STUART TAYLOR: He definitely will have tougher hearings. I thought it was a little bit of a stretch for Roberts to say, oh, those memos didn’t necessarily reflect what I thought, and as Jeff says, it would be more of a stretch for Alito to say that, particularly the job application where he says, “Here’s what I believe, that’s why you should make me” — so I think he’s going to have to answer questions that Roberts was able to duck.

I don’t necessarily agree with Jeff that his judicial philosophy is harder to glean. I think he’s very similar to Roberts. He’s not as smooth an operator – I don’t mean that in a pejorative sense to either of them. He’s a little geekier; he’s a little dweebier. Roberts was someone said the big man on campus type, and Alito is not, but I think both of them come across, from what I’ve read of them, particularly the judicial work, as people whose principal judicial philosophy is that judges shouldn’t be running the country. I think in that, he and Roberts are quite similar.

RAY SUAREZ: Stuart Taylor, Jeffrey Rosen, thank you both.