JURIST Guest Columnist Nora Demleitner, former law clerk to Judge Samuel Alito and currently professor of law at Hofstra University School of Law, says that comments by senators on the first day of Judge Samuel Alito's Supreme Court confirmation hearings foreshadow a range of challenges the nominee will face in questioning on coming days…

Yesterday’s opening statements by the members of the Senate Judiciary Committee and Judge Alito may not have surprised observers of the debate surrounding the Judge’s nomination to the U.S. Supreme Court. Still, they set the stage for the hearings that are taking place this week.

In light of his asserted independence Senator Arlen Specter focused his opening remarks on abortion and some aspects of executive power, highlighting the most important focal points of the hearings. Most of the Democratic senators confirmed that their questioning will follow these lines.

Most of the Senators’ attacks on and defenses of Judge Alito and his record were predictable. While the Republicans proclaimed Judge Alito’s eminent qualifications and record — which nobody seems to seriously dispute — others highlighted his concern for judicial restraint, a codeword presumably for opposition to matters such as abortion and gay marriage and the defense of states’ rights. The Democrats, on the other hand, focused on Judge Alito’s supposedly conservative record as a judge and voiced their distress about his perceived views on abortion, the right to privacy, and separation of powers.

Senator Russ Feingold also reiterated some concerns about the Judge’s integrity, and deftly tied those to the abuses of corporate power. Even though Judge Alito may not have handled his initial response to the Vanguard recusal issue particularly astutely, anyone who knows the Judge well has nothing but the highest regard for his integrity. Not only is Judge Alito no Andrew Fastow, he had a roll of stamps in his office for his personal mail and paid for his personal phone calls from Chambers.

More interesting has been Senator Charles Schumer’s attack on Judge Alito. He accused the Judge of reaching predictably conservative outcomes but hiding them behind judicial craftmanship. This is a difficult line of argument to refute. All of those of us who believe that Judge Alito decides each case on its merits may be just dupes — duped by a super smart judge who has followed his personal ideology for decades. It seems difficult to imagine that a person could have been hiding such strong personal beliefs from virtually everyone with whom he has worked for such a long time. However, nothing is impossible if we believe that Judge Alito is Dr. No.

If Senator Schumer’s line of attack were to succeed, non-ideological judges may face an uphill battle in confirmation hearings. Our judicial system is designed, through procedural and evidentiary rules, burdens of proof, and even substantive law, to make certain outcomes more likely than others, to benefit certain groups of litigants over others. For these reasons comparing one appellate judge’s record against those of all other appellate judges is most difficult, if not impossible, in light of the vast number of cases in which Judge Alito participated. The results of such a comparison may be downright misleading if done with an ideologically driven outcome in mind.

To support a Schumer-type attack, Senator Ted Kennedy, in his opening remarks, referred to a study by Cass Sunstein which supposedly shows that Judge Alito sides largely with institutional interests and against individuals. Interestingly, Sunstein himself acknowledges a host of problems with his methodology, and does not recommend against Judge Alito’s elevation to the Supreme Court.

Judge Alito’s opening statement was the most interesting of all. Diplomatically and sometimes subtly, he tried to blunt some of the criticism that has been directed against him. He highlighted his father’s experience as the immigrant child of poor parents, and his own upbringing in a blue collar neighborhood. Not only will such stories humanize him in the eyes of the American public, they may also make it more difficult to believe that he is against individual rights and shortchanges the downtrodden. Judge Alito also indicated that he grew up with strong, independent, professional women — his mother and his sister. The latter is a trial lawyer, as he put it, she is “in a profession that has traditionally been dominated by men.” Clearly, so he implies, he has learned from that experience.

Somewhat surprising was Judge Alito’s description of his college and law school experiences. While he calls those days “a time of great intellectual excitement,” he also “saw some very smart people and very privileged people behaving irresponsibly.” This theme he continues later in his testimony when he indicates that nobody is above the power of the law.

The Senators’ emphasis will be on Judge Alito’s statement that his role — but not necessarily his personal beliefs — changed when he became an appellate judge. Clearly this statement foreshadows his explanation of the memoranda and especially the job application he wrote during the 1980s when working for the Justice Department.

Curious might be his assertion that “[g]ood judges are always open to the possibility of changing their minds.” Conservatives and liberals alike may take comfort in this statement – or recoil in horror. It may indicate that Judge Alito is open to new arguments even on issues where some have claimed that his mind has been made up already. It supports the claim by those who know him — including myself – that he does not have a political agenda and that his opinion is being formed by the arguments presented by both sides and by his colleagues on the bench. But it may trouble liberals (and some conservatives) since it could imply that he does not feel inevitably bound by precedent. The question then is, which precedent would he be inclined to reconsider.

What did not come up and should be asked? Some of the issues most pressing to Congress will also be on the Court’s agenda this term. Among the topics not even mentioned by the Senators was sentencing, an area in which Supreme Court justices might benefit from the experience of a former prosecutor. A long-time appellate judge whose Circuit put sentencing appeals on hold for months waiting for the Supreme Court’s decision on the applicability of Blakely to the federal system, as did Judge Alito’s Third Circuit, may be in a position to emphasize the importance of clear guidance to lower courts. The Senators should ask him about prosecutorial power and abuses in plea bargaining and sentencing to give us a clearer perspective of how he views governmental power and the role of the federal judiciary vis-a-vis the executive.

Another issue of great importance to 21st century jurisprudence is the use of foreign sources of law in Supreme Court decision making. Despite Judge Alito’s solely domestic legal experience, some of his background factors may make him open to considering foreign opinions in developing a reasoned decision on crucial legal issues confronting all Western countries. This is a question of larger importance as it may foreshadow the role the Court can and will play internationally as a judicial leader, and may determine whether the Supreme Court is willing to recognize a set of Western norms. Justice O’Connor was a forceful proponent of recognizing the valu
e of foreign sources in developing solutions to domestic issues facing comparable Western legal systems. Inter-country judicial dialogue may become an even more pressing issue in the age of terror: British courts have asked the U.S. Supreme Court to allow for the judicial review of the detention of those held in Guantanamo. European courts have faced the issue of abuse of executive power with regard to the detention of terrorist suspects.

These hearings should be interesting. Let’s see what Judge Alito and the Senators make of Day 2.

Nora Demleitner is Vice Dean for Academic Affairs and Professor of Law at Hofstra University School of Law. She clerked for for Judge Alito from 1992-1993.
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