SONIA JARVIS REFLECTS ON WEEK ONE OF THE CONFIRMATION HEARINGS


Sonia Jarvis, visiting professor of Equality and Justice in America at the Baruch School of Public Affairs gives her thoughts on the first week of the confirmation hearings. We asked her to reflect on the courts and how they affect our daily lives, how important a Supreme Court justice is, and why any of this matters—or should matter—to Americans. And she agreed to send us several installments of her observations, thoughts, and musings.

January 12, 2006: Impressions from Day 3

The second day of testimony from Judge Alito essentially followed the same script as Day 2. After most media accounts suggested that the Democratic members of the Senate Judiciary Committee had failed to effectively attack the nominee, the Democrats were much more aggressive in their tone in questioning Judge Alito. Republican Senators responded by accusing Democrats of being unfair to Judge Alito spending time on issues that the Judge had already answered at length. For the most part, Judge Alito maintained the same approach in responding to questions about abortion, presidential power, reapportionment, ethics, and his membership in the Concerned Alumni of Princeton with additional questions about religion, free speech and the death penalty.

The only real fireworks during the day involved a dispute between Chairman Arlen Specter (R-PA) and Senator Ted Kennedy (D-MA) over Kennedy's request for a subpoena of the records of the former head of the Concerned Alumni of Princeton. Democrats continued to hound Judge Alito about his affiliation with the now discredited (and disbanded) group while Republicans accused Democrats of trying to find the nominee guilty by association with the anti-woman, anti-minority statements made by that group. I think it was a legitimate line of questioning for committee members to try to ascertain whether or not Judge Alito listed the Concerned Alumni of Princeton on his 1985 job application in an effort to burnish his credentials with the Reagan Administration or if he shared the rather noxious racist and misogynist views espoused by that group. Judge Alito distanced himself from the group saying he "deplored" those views and late in the day seemed to acknowledge in a response to Senator Schumer (D-NY) that his listing of CPA had more to do with trying to get a job than his support for the group's stated position.

As Democrats attempted to clarify Judge Alito's judicial philosophy and his understanding of constitutional principles, several themes became more apparent. Judge Alito's standard answer to any question has been to reiterate his general approach: after reviewing the facts of a matter before him, he would then review applicable precedents (under the practice of stare decisis), the relevant statute, order or legislation at issue, and then apply the law to those facts. Judge Alito's refusal to accept the Roe v. Wade decision as "settled law" when he was willing to accept other precedents as settled law entitled to great respect under stare decisis and thus not subject to serious reexamination suggests to me that he would be amenable to reexamining the constitutionality of the Roe decision.

Republican members of the committee praised Judge Alito's careful, technical approach to the law as an example of judicial restraint that would offset the "judicial activism" of past Supreme Courts (like the Warren Court that Alito disdained). While it is clear that within our constitutional system judges appointed to the Federal Bench under the authority of Article III of the Constitution have the duty to interpret the constitutionality of actions taken by the state, reasonable people have differed in assessing whether a court's decision is a novel interpretation of a constitutional provision or an instance of inappropriate "legislating from the bench." Within the political realm we have been fighting over the Supreme Court's role in our system of government for the past 50 years. Indeed the most significant Supreme Court case of the last century, Brown v. Board of Education (1954) that overturned the precedent established in Plessy v. Ferguson (1896) sanctioning segregation of the races, was simultaneously hailed when it was first decided as restoring our democratic form of government by reviving the true meaning of the 14th Amendment and as being one of the worst instances of judicial over-reaching and improper judicial activism.

Judge Alito testified that he considered Brown now to be settled law and that the Supreme Court was justified in overturning the incorrect interpretation of the 14th Amendment that had held sway since the Plessy decision. In response to a question from Senator Durbin (D-IL) about his view on the Brown decision, Judge Alito asserted that deciding Brown "was one of the greatest, if not the single greatest thing, that the Supreme Court of the United States has ever done." Yet under Judge Alito's approach to the law it is not clear to me, had he been sitting on the Court in 1954 and faced with the monumental decision presented by the Brown litigation, how he would have ever supported a decision that was based on an expansive reading of the meaning of justice and equality and not upon a narrow, cramped technical application of the law to the facts at hand.

The Democrats tried to characterize Judge Alito's record on the bench as favoring the big institution over the little guy. What I found most troubling about Judge Alito's defense of some of his prior decisions was the lack of humanity in his approach to the law. If the law says that a 10-year-old minor should be searched in connection with a drug bust, then so be it. If a criminal defendant's lawyer made a material error that resulted in an improper conviction, that defendant should not rely on Judge Alito's view of justice for relief. My point here is that Judge Alito's judicial philosophy may not place him outside of what currently passes for the judicial mainstream (in part because his opinions as an appellate judge could be overturned by the full 3rd Circuit Court of Appeals or ultimately the Supreme Court) but that his view of justice would make a decision like Brown that expanded the promise of the American Dream to all citizens unlikely.


January 11, 2006: Impressions from Day 2

The only surprise from the first day of Judge Alito's confirmation hearing was his rather flat opening statement. Following the example of Justice Thomas, Judge Alito chose to focus his opening statement on a personal narrative of his blue-collar background rather than on an explanation of his judicial philosophy. His decision to refer to the cultural clash he felt with many of his Princeton classmates seemed curious in light of the discomfort he later displayed on Day 2 when asked to explain his membership in the Concerned Alumni of Princeton. This group, which had been disavowed by former Senator Bill Bradley (D-NJ) and Senate Majority Leader Bill Frist (R-TN) for its racist and misogynist views, had been listed by then-attorney Alito as one of two groups to which he claimed membership (the other was the Federalist Society) on his 1985 application to join the Reagan Administration. Judge Alito tried to explain away his affiliation with this group that had been disbanded by testifying that he must have joined it because it was also active in protesting the negative treatment received by the ROTC on the Princeton campus, not because of its attitudes towards women and minorities.

Judge Alito's overall performance and demeanor was a matter-of-fact and indeed rather pedantic approach to explaining his reasoning in the various cases raised by the members of the Senate Judiciary Committee. His equable demeanor helped to defuse the charges made by his critics that his record on the bench revealed a right-wing ideologue. Republican senators spent most of their time praising Judge Alito and feeding him softballs. To his credit, Judge Alito made an effort to answer the questions posed by Democratic senators with a few notable exceptions in contrast to Chief Justice John Roberts who often refused to answer questions on the grounds that those issues were sure to come before the Court. The areas that Judge Alito avoided providing straight answers included his views of the legitimacy of the Roe v. Wade abortion decision, the proper reach of executive power especially during wartime, and the reasoning of the Bush v. Gore decision that determined the outcome of the 2000 presidential election.

Judge Alito was willing to state for the record that despite examples in his record suggesting that he questioned the constitutionality of the "one man, one vote" standard articulated in the 1962 Baker v. Carr case, or the right to privacy crafted by the Court in the 1965 Griswold v. Connecticut decision, he found those principles to be examples of settled law that he now accepted. Judge Alito also distanced himself from an earlier statement that seemed to suggest that he believed that the executive branch had supremacy over the legislative branch. However, he resisted efforts by several Democratic senators to acknowledge the Roe abortion case as settled law in the same way he accepted Baker v. Carr and the Griswold decision: The most he was willing to say was that he considered Roe to be a precedent but not a super precedent even though it had been reaffirmed numerous times since Roe was decided in 1973. When he was pressed by Senator Schumer to state whether or not he still held the opinion he stated in a 1985 memo that "the Constitution does not protect a right to an abortion," Judge Alito refused to answer the question after earlier testifying that he would have an "open mind" on the matter of abortion after evaluating Roe under the doctrine of stare decisis.

Senator Feinstein, the only woman on the committee, did not start her questions with the abortion issue but instead focused on Judge Alito's view of congressional powers under the Commerce Clause of the Constitution. For those who might have wondered why Senator Feinstein spent considerable time on this issue, it is important to note that the Commerce Clause, until recently, has served as an important constitutional basis for cases involving race, women's rights, and environmental law. Judge Alito explained his dissent in an earlier case but declined to respond to Senator Feinstein's efforts to elicit his views on the reach of the Commerce Clause. Similarly he resisted efforts by several senators to pin down his view of the President's authority to authorize warrant-less searches by stating that the President was not above the law and that since this matter would undoubtedly come before the Court he declined to speculate on this important issue. He was questioned about this issue not only because the issue of the presidential power is a current controversy but also because of his earlier writings and speeches he had made about executive power Senator Kohl tried to elicit Judge Alito's view of Bush v. Gore, a case the Court has said cannot be used as a precedent, but again Judge Alito declined to offer his view on a case that challenged the Court's legitimacy, independence, and activism and one that most Americans formed an opinion on whether it was rightly decided.

Judge Alito spent a considerable amount of time explaining his view of stare decisis, or relying on earlier cases that serve as a precedent in order to provide stability, consistency and certainty regarding the administration of justice. I found it curious that a nominee who had earlier in his career had professed disdain for the judicial activism of the Warren Court now found cases like Baker and Griswold and even Brown v. Board (that in 1954 overturned the separate but equal doctrine held in the 1896 Plessy v Ferguson decision) as settled law not subject to debate. Without the activism of the Warren Court, it would have taken this nation even longer to confront the institutional inequality that Plessy v. Ferguson allowed to become ingrained in every facet of American society. Many Americans now believe this nation is stronger because of the Supreme Court's decision in Brown v. Board that overturned state sponsored segregation and served as the foundation for legislation protecting civil rights of minorities, women, the aged, and people with disabilities.

While a considerable amount of time during the hearing was spent on his treatment of minorities and women in his opinions, the news media coverage in The New York Times and the Washington Post did not focus on that portion of Judge Alito's testimony in reporting on Day 2 of the hearing. In analyzing Yale Law School alumni Judge Alito's record on civil rights, a small group of Yale Law School faculty members and students found that "Judge Alito consistently has used procedural and evidentiary standards to rule against female, minority, age, and disability claimants. He has taken a markedly different approach to religious discrimination, ruling in favor of religious minorities in various contexts." Many of the civil rights groups that have opposed Judge Alito's nomination have based their opposition in part on Judge Alito's record in civil rights cases. Judge Alito explained his reasoning for his rulings in civil rights cases at considerable length. Whether Judge Alito's record on civil rights will become a factor in the final vote on his confirmation to the Supreme Court remains to be seen.


January 10, 2006: Impressions from Day 1

The first day of the Senate hearing concerning the nomination of Judge Samuel Alito of the Third Circuit Court of Appeals to replace retiring Justice Sandra Day O'Connor was relatively uneventful. Most of the Senators reacted as expected with most of the Republican Senators indicating their support of the nominee and his right not to state how he would rule on various issues while Democrats promised to ask tough questions about executive power, women's right to an abortion, and civil rights. Judge Alito was effectively put on notice that he will not enjoy the cakewalk Chief Justice John Roberts enjoyed during his hearings last September.

The committee members spent a considerable amount of time noting the significance of this nomination to the balance of the court given Justice O'Connor's role as a swing vote as well as Judge Alito's replacement of the first woman on the Supreme Court. Senators from both sides of the aisle acknowledged that their role in providing "advice and consent" to the President for his nominations to the Supreme Court is one of the most important duties that they perform in view of the Supreme Court's role in our constitutional system. Several Republican members mentioned that Justice Ruth Bader Ginsburg, who as a lawyer had represented the American Civil Liberties Union, was not held to the standard of maintaining the Court's balance when she was nominated to replace the very conservative Justice Byron White. Several Democratic members noted their concern about Judge Alito's views of women's rights especially since he would be replacing the first female justice ever appointed to the Supreme Court.

I found these comments ironic for a number of reasons. I was struck anew by the fact that the Senate Judiciary Committee itself (indeed the U.S. Senate itself) still does not look like America. During the last contentious nomination hearing involving Justice Clarence Thomas, many Americans found the image of an all white, all male Judiciary Committee questioning a black nominee about sexual harassment allegations made by the nominee's former female black employee unsettling. In the 14 years since that hearing, the committee has added only one female to its roster and it still does not have a single minority member. Moreover, while Justice O'Connor's retirement reduces the female representation on the Court by 50 percent (Justice Ginsburg will be the only female on the Court), President Bush rather than Judge Alito is responsible for that result. I found it jarring to hear a few of the Senators talk about how abortion "rips the unborn out of the womb" and that abortion was merely a "matter of convenience" without any effective rebuttal from those members (both Democrats and Republicans) who supposedly support a woman's right to choose her methods of contraception.

The substantive issues raised by the committee members in their opening statements included abortion, executive power, civil rights, individual rights, right to privacy, separation of church and state, and ethical issues. Of those issues, several Republican members (notably Senator Brownback (R-KS) and Senator Coburn (R-OK)) spoke at length about abortion and why they felt the Roe v. Wade decision was wrongly decided and should be overturned. Democrats characterized their concerns that the nominee would deny women the right to choose an abortion in view of the nominee's personal objection to abortion. The recent revelation that the Bush Administration has engaged in warrantless wiretapping of American citizens, as well as the Administration's policy on detainees and torture, will be the subtext for questions Judge Alito will face concerning his views of the power of the President to override legislation during a time of war. Judge Alito's membership in a Princeton alumni group that opposed the admission of women and minorities and the paucity of cases in which he ruled in favor of racial minorities in cases before him may also be expected to generate sharp questions.

Several Senators set forth the standard that they felt should be used in assessing whether a nominee should be elevated to the Supreme Court. Senator Graham (R-SC) stated that the standard should not be a nominee's ideology but whether or not the nominee has the qualifications and temperament to become a justice. Senator Durbin (D-IL) quoted the late Senator Paul Simon in stating that the standard for confirming a justice should be whether the nominee would expand or restrict the freedoms enjoyed by Americans. It is important to note that in most cases, nominees to the Supreme Court are in fact confirmed, especially when the President's party controls the Senate. The Democrats have since backed off of threats to filibuster the Alito nomination. Absent a major misstep during his appearance before the committee, Judge Alito can expect to be confirmed since he only requires a simple majority vote to be confirmed.