Alito Day 2: Strange Adventures in the Twilight Zone

JURIST Guest Columnist David Kairys of Temple University School of Law says that Judge Samuel Alito's answers to senators' questions on the second day of his Supreme Court confirmation hearings reflect the views of a jurist who favors the wishes of government, corporations and the powerful over freedom, liberty and the rights of individuals...



Questioning of Judge Alito by the senators consumed a long day Tuesday. All told, both sides accomplished much in front of the TV cameras: Alito came off as a smart, likeable fellow with conservative credentials, but he's done some strange things, and some of his decisions seem at least scary.

Alito's supporters can't seem to make up their minds whether they like him because he decides cases irrespective of his personal values or because his decisions reflect personal values they like. His detractors can't seem to decide whether he's dishonest or too honest. For the most part, Alito skirted or evaded the hardest questions: whether he would overrule Roe v. Wade, or allow the president to do anything the president pleases.

Senator Specter started off with long questions on abortion and President Bush's illegal eavesdropping on Americans, but he deferred to Alito - near the end asking mildly after a long question, "Care to comment?" - and accepted vague, noncommital responses.

Specter emphasized Justice Jackson's three-part formulation of executive power in foreign affairs set out in the Steel Seizure Case during the Korean War - actions authorized by Congress, actions repudiated by Congress, and a "zone of twilight" in-between (perhaps anticipating the popular Rod Serling TV series). Alito and several senators liked the Jackson formulation as a general framework, and it became the hands-down winning judicial formulation of the second day of hearings.

It got scary when Senator Leahy, and later Senator Kennedy, pushed Alito on:
  • President Bush's wiretapping without authorization in violation of a federal statute (and, though little discussed, the Fourth Amendment), and Bush's initial opposition to a congressional ban on torture followed by his signature on the act banning torture and a later disclaimer that it limited him at all.

  • Alito's approval, in a dissent criticized by Judge Michael Chertoff, now Secretary of Homeland Security, of an unauthorized strip search of a 10-year-old girl, and of an unauthorized gunpoint "eviction" of a farmer and ransacking of his home.

  • Alito's role in the Concerned Alumni of Princeton (CAP), which opposed admission of women and minorities to that once all white and male (and seldom Italian or Catholic) university.
Alito conceded that the president must follow the law, but gave no concrete indication of what limits he sees on presidential power. He had farfetched rationales - meaningful to few if any judges besides himself - for approving the searches. And he tried to sidestep the CAP issue.

His role in CAP, though it goes back to his student days, is quite troubling. In his initial response, Alito claimed to hardly remember what CAP was or whether he played any part in it. He said he was concerned about ROTC being on the campus, which CAP also was. But CAP was most known for its opposition to women and minorities on campus - which led basketball player and later Senator Bill Bradley, and Senate Republican leader Bill Frist, to publicly repudiate CAP. Alito, whose memory seems quite intact, couldn't remember why he boasted about his CAP membership on his application for a job in the Reagan Justice Department in 1985 - almost two decades later, by which time CAP was unambiguously known, and notorious, for its lament for the bygone days of Princeton's racial and gender exclusivity.

The whole matter may be worse if he really played no significant role in CAP. That would appear to mean that he exaggerated his participation in CAP to curry favor with the Reaganites by demonstrating an early opposition to the demands of minorities and women.

An unexpectedly large portion of the questioning and answering was devoted to an ethical question. Judge Alito had a substantial investment in Vanguard mutual funds, but he did not recuse himself in a case in which Vanguard was sued, and he ruled and wrote an opinion in favor of Vanguard. When an accusatory motion to disqualify him was filed by the losing plaintiff, Alito recused himself and requested that the court re-hear the matter without him. Ownership of mutual funds doesn't ordinarily require recusal, but Alito had made a sweeping commitment to the Judiciary Committee at his confirmation hearing for the Court of Appeals: he would go further than required by recusing himself in matters involving mutual funds he owned, and, specifically, in matters involving Vanguard.

Alito testified that he didn't realize Vanguard was a party. This was unconvincing because Vanguard's name was all over the briefs - and the opinion written by Alito. It didn't help that earlier he had offered another explanation.

There is still another possibility. Perhaps - and this is speculative, not based on any inside or other information - he didn't read the opinion, though it bears his name. The case was a pro se appeal, an appeal by a party without counsel representing himself. The opinion could have been written, for Alito's signature, by his or a Third Circuit law clerk. This sort of thing isn't supposed to happen, of course. But I don't think he's corrupt, and there's no good reason for him to purposely disregard his promise to the Judiciary Committee. Nor is it plausible that he wrote the opinion and missed Vanguard. Not noticing Vanguard, though not helpful to his confirmation, may sound better than not reading opinions you wrote.

There wasn't any smoking gun - although Alito cast a strange lone vote to invalidate the decades old congressional ban on machine guns. But the emerging image of his values, approaches and concrete decisions would, like Judge Robert Bork's in the 1980s, not be appealing if widely understood by the public.

In Alito's jurisprudence, the freedom, liberty and rights of individuals regularly pale in favor of the wishes of government, corporations and the most powerful and wealthiest among us. His decisions very consistently make it near impossible to sue, for example, corporations that pollute, police who search, arrest, point guns and ransack at will and without authorization, and employers who discriminate based on race or gender. His early writings yearn for undiluted executive power, and repudiate the most fundamental principle of a fair electoral process - one person, one vote.

He denies some of it, and has trouble remembering the rest.


David Kairys, a law professor at Temple University, is editor of The Politics of Law (Basic Books 1998).
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