Judge Alito Makes Opening Statements at Confirmation Hearings

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• RAY SUAREZ:

  Joining us to break down the issues raised during the senators' opening statements are two constitutional law scholars. Kathleen Sullivan is a professor at Stanford University Law School. Bruce Fein was associate deputy attorney general during the Reagan administration. He is now in private practice in Washington, D.C.

  And, Bruce Fein, that statement from Judge Alito was short, to the point. What was he telling us in it about how he is going to handle himself during these hearings?

• BRUCE FEIN:

  Well, I think it suggested that he wanted to avoid explaining exactly his judicial philosophy. By philosophy I don't mean a particular outcome in a particular case but choosing between two very different schools of thought as to how the Constitution ought to be addressed.

  One school that was represented by Judge Robert H. Bork, and he was defeated and Alito deplored that defeat, is that the text and the purpose, the original understanding of the Constitution governed the justice's interpretation of the Constitution and the judge is not permitted to inject a sense of social goodness or ethical compulsion in embellishing upon the constitutional words and understanding of the founding fathers.

  For example, the idea that the Constitution ought to protect a right of privacy because it is a good idea and if the legislators don't amend the Constitution to protect that right, the justices need to step in and raise the level of morality that the politicians seem to be, and the public accept, is something that the non-Alito school accepts.

  Judge Alito during his testimony avoided any statement about judicial philosophy, which is about the nomination process itself. It is not — I think everyone understands that a judge should be open-minded, should entertain different views.

  Those sorts of things are standard for anyone who would sit on the Supreme Court or any other court. But the decisive test and what ought to be brought out in the hearing is what are the philosophical convictions that lead the justice in examining any particular case to decide that there is or is not a constitutional claim.

• RAY SUAREZ:

  Professor Sullivan, Judge Alito called the judge a man without a client, virtually, and as Bruce Fein noted, endorsed that idea of a constantly open mind. Can that be sustained across the four days or three days of hearings?

• KATHLEEN SULLIVAN:

  Well, Judge Alito made a very appealing statement about his worthiness to step into the shoes, the giant shoes left by Justice Sandra Day O'Connor, who is a paradigm of judicial independence, fair-mindedness, open-mindedness, and lack of ideological agenda.

  And the two most important things and very appealing things that Judge Alito said were, first, that the rule of law is fundamental and the role of the judge is quite different from the role of the lawyer, and that the role of the judge is to be independent of agendas and clients.

  And second, he said no person, no matter how high, is above the law and no person beneath the law, so he is trying to signal a kind of judicial independence that will appeal to the members of the Senate Judiciary Committee. But I think the divide we saw today is a little bit different than the one that Mr. Fein described.

  The divide we saw today between the Republican and the Democratic senators was between two views of the role of the judges on the Supreme Court, the justices on the Supreme Court. The Republicans sounded the theme of judicial restraint. Judges are unelected and so they shouldn't strike down the will of the people or impose their will on the people.

  Judges should be restrained and defer to statutes and laws passed by Congress and the states. The Democrats sounded a different theme, the theme of judicial independence, the important role of the Supreme Court in upholding the rights of minorities and women and the little guy against sometimes the will of the majority, not because they want to raise the moral level, as Mr. Fein suggests, but because those minority rights as the framers imagined will sometimes be trampled by the majority and need to be upheld by the courts.

  But most important line of the day is that line about no person is above the law because the other theme the Democrats sounded is the important theme of the need for judicial restraint of the novel and sweeping, perhaps unprecedented claims of unfettered executive authority that we've seen coming from the administration during the war on terror.

• RAY SUAREZ:

  Do you accept — go ahead.

• BRUCE FEIN:

  Well, I think some of the observations are somewhat facile, for example, the Republicans, Arlen Specter who would champion Alito as someone who ought to be practicing judiciary restraint, they have the idea that the court should — that the court is acting in a way that is too aggressive in commerce clause cases.

  And that is something that — it wasn't from just Specter, some of the other Republicans applaud the effort of the Supreme Court to reign in Congress under the commerce clause.

  So I don't think that there is a consistent philosophical division between the Republicans and Democrats. But I come back — much of what Kathleen Sullivan said is accurate. But what counts on the Supreme Court is a judicial philosophy. Everybody understands that a judge should be independent. They should do what the president tells them to do, that they have to exercise independent judgment.

  But what splits the court and has split the court for the last 30 years is these two different views of what a proper philosophy is interpreting the Constitution. Is it simply to protect whatever minority right happens to be there, whether it consistent with the understanding of the founding fathers, or whether the court itself is bound by that original understanding, and if there are to be improvements in deficiencies found, whether it through the amendment process, like the bill of rights or the civil war amendment.

  And that philosophical division was never really addressed by Judge Alito and not really addressed by either the Democrats or the Republicans. Now the one thing that was important I think that Kathleen Sullivan mentioned was this issue about there is no person above the law. You may recall during Richard Nixon's days, he said if the president orders something, it's legal, whether it's a break-in or not.

  Given some of the claims that have been made with regard to executive power these days, I think Judge Alito may have been sending a signal that at least on his watch there is nobody, even the president of the United States who escapes judicial review.

• RAY SUAREZ:

  Well, Professor Sullivan, given that the Democrats in their opening statements did mention some specific issues that they intend to quiz the nominee about, will he be able to use the deflecting move that some previous nominees used and say look, this is business that is likely to come before the court — I can't even discuss it even when I have written opinions about it at my appellate level?

• KATHLEEN SULLIVAN:

  Well, the Democrats are certain to try to probe whether Judge Alito is as Senator Schumer said today outside the mainstream, the label that was attached to Judge Bork in his unsuccessful nomination in 1987. They do that by relying on statements from 1985 in which Judge Alito said he was personally opposed to the constitutional right to abortion, the permissibility of race preferences in affirmative action, and even one person, one vote.

  But he will be able to deflect that easily by saying that was 20 years ago, I was a lawyer, not a judge, so the Democrats will also try to probe whether he is outside the mainstream in the decisions and the sense he has rendered in his 15 years on the Third Circuit as a judge. And they will try to focus, as they signaled today, on some of the more extreme decisions like Congress doesn't have the authority under the commerce clause to ban the possession of machine guns, which Senator Feinstein focused on, or that he would have upheld a strip search, rather invasive strip search of the wife and daughter of a suspected drug dealer.

  Or famously that he dissented from a decision of the Third Circuit that the Supreme Court later affirmed, in which the Third Circuit said women shouldn't be forced to ask their husbands permission to have an abortion and Judge Alito said he would let Pennsylvania pass that law.

  So the Democrats will try to show that perhaps those past decisions are outside the mainstream but I think Judge Alito will be able to respond, and if he does this effectively it will put some of these Democratic challenges to rest by saying he was working as a craftsman within the latitude left him by the Supreme Court.

  So where I think the Democrats really have an opportunity to ask him questions that are important to contemporary debate is on the executive power question and ask the questions not about what might come before him, but what he thinks is the right approach to constraining executive power, one where —

• RAY SUAREZ:

  Let me get — let me use the time I have left to get a response to some of those points from Bruce Fein.

• BRUCE FEIN:

  First with regard to executive power, there is much said that since Sam Alito was in the executive branch and he did write memos supporting a strengthening of supporting executive power against congressional encroachment, which was a serious problem at the time of President Reagan, not today, that, therefore, he is likely to uphold presidential assertions in fighting the war against terrorism.

  But historically that is not true. For example, Justice Scalia, who is viewed as a conservative justice and served in the executive branch as well before his service on the U.S. Supreme Court and the famous Hamdi case said that the president did not have power unilaterally to detain an illegal combatant. Congress had to suspend the writ of habeas corpus.

  Robert Jackson was an attorney general under Franklin Roosevelt and yet as a justice struck down Harry Truman's seizure of a steel mill during the Korean War. So there isn't any easy translation from someone serving in the executive branch and defending presidential powers at that time and then later on as a justice finding that separation of powers prevents a president from overstepping his bounds.

  With regard to the — this particular area where the Democrats are likely to question Alito, certainly they will always try to claim that he is outside the mainstream. That has been a claim that the Democrats have made every time a Republican is sent up to the Supreme Court since Judge Bork. And I think it simply loses its credibility these days because all of these calamities that are alleged to ensue if we didn't have — if this particular individual was confirmed like we would go back to Jim Crow days, we would have back alley abortion. They would never happen on that score.

  And I think if the Democrats simply hit on these particular narrow case law issues, they will lose and Alito will sail through at least 60 or 65 votes.

• RAY SUAREZ:

  Guests, thank you both.