Tuesday, January 17, 2006

Reflections on Alito Hearings

I listened to every day of the Senate Judiciary Committee hearings last week (call me a masochist), and I am struck by something I thought I'd share.

The hard core liberals on the Committee (Kennedy and Schumer, in particular) are utterly convinced that Sam Alito's personal beliefs (i.e., those he freely shared before he was appointed to the bench) cannot be separated from his role as a jurist -- that a human being in the jurist's position cannot avoid injecting his political beliefs into the performance of his job. To be fair, if the shoe were on the other foot, we'd be hearing the same line of baloney from the conservatives.

And yet, Judge Alito attempted to explain, repeatedly, how he would go about conducting "the judicial process" in analyzing the facts and the law in any dispute to arrive at his position, careful to assure questioners that his personal opinions are not relevant to such a task.

I think there is an organic distinction between the DNA of the politican and the DNA of the jurist. That is the innate ability to remove one's ego from the exercise of the task at hand. The politician seems to be constitutionally incapable of such a Herculean feat, and therefore is skeptical of any other mortal's ability to do just that. And yet it is precisely that attribute that Alito's colleagues repeatedly cited in articulating their unqualified endorsements of his nomination.

It is illuminating to consider some of the pith of these witnesses' endorsements, and reflect as you do on whether you know of any politician today who is even remotely capable of emulating the characteristics described.

Yale Law Professor ANTHONY KRONMAN, one of Alito's law school classmates:

...Sam listened ... in the deeper and more consequential sense of straining to grasp the good sense of [another's] position and to see it in its most attractive light....

...Sam always spoke with modesty. But even when he was defending a position that he believed clearly to be right, did so with the knowledge that he might be wrong….

...The temperament of the judge, as I see it, is marked by modesty, by caution, by deference to other, in different roles with different responsibilities, by an acute appreciation of the limitations of his own office, and by a deep and abiding respect for the past.There is a name that we give to all of these qualities taken together. We call them judiciousness. And in calling them that, we recognize that they are the special virtues of a judge.

[I hesitate to venture how many members of Congress would meet this description these days. Appreciating the limitations of his own office? Talk to Jack Abrahamoff. Deference to others? Speaking with modesty? It's just not in the job description.]

The Honorable EDWARD R. BECKER , colleague of Alito's on the Third Circuit Court:

Sam Alito is modest and self-effacing. He shuns praise. When he had completed his tenth year of service on our Court Sam declined my offer, extended as Chief Judge, to arrange the usual party to observe ten-year anniversaries. Sam was uncomfortable at the prospect of encomiums to his service. ...

...Sam is said to have certain ideological views, expressed in some twenty-year-old memos. Whatever these views may have been, his judging does not reflect them. The public does not understand what happens when you become a judge. When you take the judicial oath, you become a different person. You decide cases not to reach the result you would like, but based on what the facts and law command. ... Sam is faithful to his judicial oath. ...

The Honorable ANTHONY SCIRICA, Chief Judge Third Circuit Court of Appeals:

...Judge Alito approaches each case with an open mind, and determines the proper application of the relevant law to the facts. He has a deep respect for precedent. His reasoning is scrupulous and meticulous. ...His personal views, whatever they might be, do not jeopardize the independence of his legal reasoning or his capacity to approach each issue with an open mind. Like a good judge, he considers and deliberates before drawing conclusions. I have never seen signs of a predetermined outcome or view. ...

I also admire him as a person. Despite his extraordinary talents and accomplishments, he is modest and unassuming. ...

The Honorable RUGGERO ALDISERT, Judge (Senior) Third Circuit Court of Appeals :

In May 1960 I campaigned with John F. Kennedy and his brother Edward in the critical Presidential primaries of West Virginia. The next year I ran for judge in Pittsburgh on the Democratic ticket for the Court of Common Pleas in Allegheny County and I served for eight years as a state trial judge. Democratic Senator Joseph Clark of Pennsylvania, was my chief sponsor when President Lyndon B. Johnson nominated me to the Court of Appeals in 1968. Senator Robert F. Kennedy of New York was one of my key supporters….

Yet, political loyalties became irrelevant when I took up my commission as a federal judge. The same has been true in the case of Judge Alito, who served honorably in two Republican administrations before he was appointed to our Court. Judicial independence is simply incompatible with political loyalties, and Judge Alito’s judicial record on our Court bears witness to this fundamental truth. I have been a judge for 45 of my 86 years. Based on my experience, I can represent Judge Alito is among the first rank of the 44 judges with whom I have served on the Third Circuit, . . .

The Honorable LEONARD GARTH, Judge (Senior) Third Circuit Court of Appeals, nominaed by Richard Nioxon, confirmed in 1969:

His fairness, his judicial demeanor and actions, and his commitment to the law do not permit him to be influenced by individual preferences or by any personal predilections. ….A word about Sam’s demeanor is in order. Sam is and always has been reserved, soft-spoken, and thoughtful. He is also modest and, I would even say, self-effacing. These are the characteristics I think of when I think of Sam’s personality. It is rare to find humility such as his in someone of such extraordinary ability....

The Honorable JOHN GIBBONS Judge (Retired) Third Circuit Court of Appeals, nominated by Richard Nixon, confirmed in 1970:

This Committee should also appreciate that appointment to an appellate court where one has life tenure is a transforming experience. A good judge puts aside interests of former clients, interests of organizations one may have belonged to, and interests of the political organization that may have been instrumental in one’s appointment. I personally experienced that transformation, and I witnessed it repeatedly in judicial colleagues who joined the court after I did.


I find this notion of the "transforming experience" to be particularly ironic, because, based on my experience and personal observation, politicians also undergo something of a transformation after they get elected -- but the two transformations could not be more different.

The transformation to jurist involves the shedding of one's persona to a significant extent -- Justice Roberts said during his confirmation hearings that "Judges wear black robes because it doesn’t matter who they are as individuals. That’s not going to shape their decision. It’s their understanding of the law that will shape their decision." (*while Judge Roberts, I think, was making a point of using the black robe as a metaphor, there is at least
one decidedly less significant historical reasoning behind behind this tradition). But here we have several experienced jurists explaining the transformation in which the individual leaves his past behind him, casts off his allegiances, his prior advocacies, his personal opinions, and becomes another person, sworn to only one allegiance, the Constitution and his oath of office to uphold it.

By contrast, when elected to political office, citizen Smith so often is transformed in a decidedly more unseemly way. Where he first was in awe of the splendor and accoutrements of his office, he eventually comes to consider himself Important; he carries himself higher, he does not appreciate the deference shown to his position, he expects it. When I first left college in 1977 and went to Washington D. C. to interview for a job with Senator Leahy, he assured me that everyone in the office called him"Pat." Years later when I stopped in to say hello, staff laughed at my recounting of the story, and assured me they refer to him as "Senator."

And with respect to political ideology, the case is even more stark. Where once statesmanship and common ground were lauded (my past musings here), today in Congress, ideological stridency is the coin of the realm for both parties. Middle-grounders are marginalized by leadership and ridiculed by the "party faithful" (and convincingly re-elected by their constituents). Presidential hopes rise or fall on the candidate's ability to court the wings during the primaries and win the mad dash to the center for the general election.

And yet we are compelled to witness the antics of Ted Kennedy attempting to bully Judge Alito and lecture about "ethics," as though there is anything in his checkered career that would qualify him to hold forth on the subject. We must listen to Chuck Schumer tell us how unconvinced he is that Judge Alito can set his personal opinions aside, when it is plain that Schumer himself would not, could not, subjugate his own opinion to anyone else's, let along admit that he may be wrong, unless his political survival depended on it. Nonetheless, something tells me that, may years from now, if Schumer were to tire of the Senate and was enticed by the lure of lifetime tenure on the federal bench, he would steadfastly assure us that his thirty years of partisan bomb throwing was "just politics," and expect us to believe him.

Well I don't believe him. Now or ever. I believe in the statements of Judge Alito's colleagues on the Circuit Court and from the U. S. Attorney's office. I believe those who have worked with him and studied with him. And I believe in the process of transformation, so eloquently described by the jurists that endorse him.

I only wish that we could convince Congressmen to wear black robes.

<< Home

This page is powered by Blogger. Isn't yours?