NY Times Editorial: Judge Alito, in His Own Words

The New York Times
January 12, 2006
Editorial
Judge Alito, in His Own Words

Some commentators are complaining that Judge Samuel Alito Jr.'s confirmation hearings have not been exciting, but they must not have been paying attention. We learned that Judge Alito had once declared that Judge Robert Bork - whose Supreme Court nomination was defeated because of his legal extremism - "was one of the most outstanding nominees" of the 20th century. We heard Judge Alito refuse to call Roe v. Wade "settled law," as Chief Justice John Roberts did at his confirmation hearings. And we learned that Judge Alito subscribes to troubling views about presidential power.

Those are just a few of the quiet bombshells that have dropped. In his deadpan bureaucrat's voice, Judge Alito has said some truly disturbing things about his view of the law. In three days of testimony, he has given the American people reasons to be worried - and senators reasons to oppose his nomination. Among those reasons are the following:

EVIDENCE OF EXTREMISM Judge Alito's extraordinary praise of Judge Bork is unsettling, given that Judge Bork's radical legal views included rejecting the Supreme Court's entire line of privacy cases, even its 1965 ruling striking down a state law banning sales of contraceptives. Judge Alito's membership in Concerned Alumni of Princeton - a group whose offensive views about women, minorities and AIDS victims were discussed in greater detail at yesterday's hearing - is also deeply troubling, as is his unconvincing claim not to remember joining it.

OPPOSITION TO ROE V. WADE In 1985, Judge Alito made it clear that he believed the Constitution does not protect abortion rights. He had many chances this week to say he had changed his mind, but he refused. When offered the chance to say that Roe is a "super-precedent," entitled to special deference because it has been upheld so often, he refused that, too. As Charles Schumer, Democrat of New York, noted in particularly pointed questioning, since Judge Alito was willing to say that other doctrines, like one person one vote, are settled law, his unwillingness to say the same about Roe strongly suggests that he still believes what he believed in 1985.

SUPPORT FOR AN IMPERIAL PRESIDENCY Judge Alito has backed a controversial theory known as the "unitary executive," and argued that the attorney general should be immune from lawsuits when he installs illegal wiretaps. Judge Alito backed away from one of his most extreme statements in this area - his assertion, in a 1985 job application, that he believed "very strongly" in "the supremacy of the elected branches of government." But he left a disturbing impression that as a justice, he would undermine the Supreme Court's critical role in putting a check on presidential excesses.

INSENSITIVITY TO ORDINARY AMERICANS' RIGHTS Time and again, as a lawyer and a judge, the nominee has taken the side of big corporations against the "little guy," supported employers against employees, and routinely rejected the claims of women, racial minorities and the disabled. The hearing shed new light on his especially troubling dissent from a ruling by two Reagan-appointed judges, who said that workers at a coal-processing site were covered by Mine Safety and Health Act protections.

DOUBTS ABOUT THE NOMINEE'S HONESTY Judge Alito's explanation of his involvement with Concerned Alumni of Princeton is hard to believe. In a 1985 job application, he proudly pointed to his membership in the organization. Now he says he remembers nothing of it - except why he joined, which he insists had nothing to do with the group's core concerns. His explanation for why he broke his promise to Congress to recuse himself in any case involving Vanguard companies is also unpersuasive. As for his repeated claims that his past statements on subjects like abortion and Judge Bork never represented his personal views or were intended to impress prospective employers - all that did was make us wonder why we should give any credence to what he says now.

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The debate over Judge Alito is generally presented as one between Republicans and Democrats. But his testimony should trouble moderate Republicans, especially those who favor abortion rights or are concerned about presidential excesses. The hearings may be short on fireworks, but they have produced, through Judge Alito's words, an array of reasons to be concerned about this nomination.


January 12, 2006
Report Cards on the Alito Hearing (9 Letters)
To the Editor:

Re "Alito, at Hearing, Pledges an Open Mind on Abortion" (front page, Jan. 11):

Judge Samuel A. Alito Jr., in his confirmation hearing, has shown himself to be a conservative-minded judge.

In practical terms, if confirmed and unless the judge changes his stripes, he would stand for a narrower view of judicial power, greater deference to the other branches of government, a friendlier view of federalist principles and a narrower view of individual rights not expressly stated in the Constitution.

The proper role for each senator will be to decide whether the balance of the Supreme Court should shift to a more conservative view collectively. Each senator will represent 1 percent of the wisdom and responsibility of the Senate in determining the makeup of the court.

While with this nomination the philosophical direction of the court will likely be determined for a long time to come, both the presidency and Congress are subject to review by the rest of us more often.

What happens now may well determine the outcomes of many elections to come in the near future.

Bruce Neuman
East Hampton, N.Y., Jan. 11, 2006

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To the Editor:

Judge Samuel A. Alito Jr. assures us that the president is not above the law. Not even the president's most fervent apologists assert that he is.

The administration asserts that under the law the president, when acting in his constitutional capacity as commander in chief, may do whatever he wants, unfettered by laws passed by Congress. It is on this doctrine that we need to know Judge Alito's opinion.

Kenneth Miller
New York, Jan. 11, 2006

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To the Editor:

Re "But Enough About You, Judge; Let's Hear What I Have to Say" (front page, Jan. 11):

Do Senators Edward M. Kennedy, Joseph R. Biden Jr. and Patrick J. Leahy really think that they are helping their party's cause by pontificating before the cameras, hardly giving Judge Samuel A. Alito Jr. a chance to answer their questions, when they ever get around to asking one?

It's bad enough that the best they can come up with are questions about the judge's membership in a conservative college alumni group, his views on abortion back in 1985 and a perceived conflict of interest in a mutual fund case. But do they also have to make fools of themselves and the party they represent?

As a Democrat, I'm embarrassed. My only consolation is that the hearings take place during the daytime, when most people are at work and unavailable to have their time wasted, like Judge Alito's.

Robert J. Inlow
Charlottesville, Va., Jan. 11, 2006

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To the Editor:

Your article implies that the senators, in talking more than Judge Samuel A. Alito Jr., are somehow depriving the public of valuable information. But it's clear that anything Judge Alito might say will have no real consequences. No votes will change; he will be confirmed.

Nor will anything he says add to our ability to predict how he will rule in future cases.

He has been coached by White House handlers to avoid making statements that are either specific or contentious. Moreover, once on the bench, he is completely free to decide however he wishes regardless of any statements he makes to the Judiciary Committee.

So what's wrong with letting the senators have a few days to voice their views on the law? Judge Alito will have a lifetime.

Jay Livingston
New York, Jan. 11, 2006

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To the Editor:

Re "Fairness in the Alito Hearings" (editorial, Jan. 11):

You say it's unfortunate that federal appeals court judges who know Judge Samuel A. Alito Jr. (who are not partisan liberals or conservatives) are coming to his defense.

Your editorial page, which has clearly been against Judge Alito since he was nominated, is worried.

You write: This is "a move that could reasonably be construed as a partisan gesture. The judges will be doing harm to the federal bench."

The harm to the federal bench comes from senators and editorial boards demanding that prospective jurists pledge allegiance to or disdain for a single issue, Roe v. Wade.

Matt Manochio
Succasunna, N.J., Jan. 11, 2006

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To the Editor:

Maureen Dowd points to the difficulty of learning anything at a confirmation hearing from a Supreme Court nominee about his past or present position on any matter that is the least bit controversial ("Doing the Alito Shuffle," column, Jan. 11).

All the nominee has to do is repeat the mantra "I will approach that issue, if it comes before me, with an open mind."

I fear that this answer will now be repeated every time a judicial nominee comes to a confirmation hearing.

When he is on the bench, we will find out what President Bush has done to the court with this nomination.

Burton Kreindel
Newton, Mass., Jan. 11, 2006

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To the Editor:

On Monday, Senator Edward M. Kennedy complained that Judge Samuel A. Alito Jr. has "supported a level of overreaching presidential power that, frankly, most Americans find disturbing and even frightening" ("Partisan Tenor of Alito Hearing Reflects a Quick Change in Washington," news article, Jan. 10).

Actually, Senator Kennedy, more Americans are disturbed and frightened that Congress has in effect abdicated its responsibility to our constitutional system and representative democracy by repeatedly sanctioning excessive executive power.

The framers of the Constitution recognized, as James Madison said, that "war is in fact the true nurse of executive aggrandizement," which is why they deliberately and explicitly placed the power to wage war in Congress's hands. The Supreme Court, with its lack of enforcement power and limited jurisdiction, is poorly situated to rein in executive power.

If anyone is going to pull the plug, it's going to have to be Congress.

Buck up, boys and girls. It's going to be a bumpy ride.

Lisa L. Miller
New Brunswick, N.J., Jan. 10, 2006
The writer is an assistant political science professor at Rutgers University.

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To the Editor:

Re "Alito Says Judges Shouldn't Bring Agenda to Cases" (front page, Jan. 10):

Judge Samuel A. Alito Jr. says he will not bring an agenda to the Supreme Court. If that is so, why have his writings and his rulings almost always favored executive prerogatives and corporate power?

Joey Freeman
Athens, Ga., Jan. 10, 2006

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To the Editor:

Re "Sam He Was," by Caren Deane Thomas (Op-Ed, Jan. 7):

President Bush and numerous conservatives have asserted that Judge Samuel A. Alito Jr.'s conservative personal opinions are irrelevant to the way he makes his judicial decisions. If that is true, why nominate a conservative at all?

By Mr. Bush's logic, he could just as readily nominate a far-left bleeding heart to the Supreme Court so long as that person set aside personal beliefs when making decisions on the law. But somehow I can't imagine that happening.

David Kornhaber
Venice, Calif., Jan. 7, 2006



NY Times Editorial: Fairness in the Alito Hearings