The Magazine

Alito, Then and Now

Dec 5, 2005, Vol. 11, No. 12 • By TERRY EASTLAND, FOR THE EDITORS
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THE OUTLOOK FOR THE ALITO nomination remains favorable. Even so, there is this short essay Sam Alito wrote in 1985. Senate Democrats and their political and media allies don't like it. Indeed, they think it may provide kindling that will feed a flame that they can blow into a fire mighty enough to consume the nomination. Because the essay is likely to stimulate the toughest questions Alito will hear when he appears before the Judiciary Committee in January, it's worth a close look.

Twenty years ago Alito was wrapping up his fourth year briefing and arguing cases in the Supreme Court as an assistant to the solicitor general. He learned about an opening for a senior position in the Office of Legal Counsel and applied (successfully, as it turned out). The job was a political slot, meaning it was not intended for a career attorney, which Alito had been since joining the Justice Department in 1977. It is possible to move from the civil service to a politically appointed position, but the person making that transition typically must share and be willing to support the administration's policies. The form Alito filled out thus asked him to "provide any information . . . pertinent to your philosophical commitment to the policies of this administration." Another question asked whether the job candidate had ever served on a political committee or been identified publicly with any political organization or candidate or issue. To both questions Alito wrote, "Please see attached sheet," on which he had composed a brief essay.

It began: "I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this administration." He noted that when he "first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley, Jr., the National Review, and Barry Goldwater's 1964 campaign." He described "in capsule form" his political views: "I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values." Alito said that he was "a life-long registered Republican" and had made "modest political contributions" to Republicans in his state (New Jersey) running for office, among them Christopher Smith, James Courter, and Jeff Bell. He noted that he was a member of the Federalist Society and that he had submitted articles for publication to both National Review and the American Spectator.

As for legal matters, Alito wrote, "in college [Princeton, 1972], I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment. I discovered the writings of Alexander Bickel advocating judicial restraint, and it was largely for this reason that I decided to go to Yale Law School [class of 1975]." He declared: "I disagree strenuously with the usurpation by the judiciary of decisionmaking authority that should be exercised by the branches of government responsible to the electorate." He observed that "the Administration has already made strides toward reversing this trend through its judicial appointments, litigation, and public debate," and he expressed hope that "even greater advances can be achieved during the second term, especially with Attorney General Meese's leadership." Alito emphasized that it had been "an honor and source of personal satisfaction" to serve in the solicitor general's office during the Reagan administration "and to help advance legal positions in which I personally believe very strongly." He cited "my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

In the essay, Alito clearly was an advocate--in his own behalf. And the picture of himself that he presented to Meese and the White House office of presidential personnel was that of not merely a "life-long registered Republican" but a political conservative ("I am and always have been") and a legal conservative, someone who shared the administration's views and was proud to be serving under President Reagan. By his account, Alito traveled the same path many conservative intellectuals of his generation did, drawing inspiration (at the age of 14) from the Goldwater campaign, reading Buckley and National Review, even batting out articles he sent to NR and the American Spectator. And concerning the law, like so many legal conservatives of his generation, he found himself questioning decisions of the Warren Court and discovering the work of arguably its greatest critic, Alex Bickel, a Yale Law professor who died young, at age 49, a few months before Alito gained his J.D. from Yale. Like other critics of the Warren Court, including some liberals, Alito identified its problematic legacy--usurpation of authority that the Constitution commits to the elective branches of government. The classic example of such usurpation, of course, was the early Burger Court decision in Roe v. Wade, which, denying the elective branches the authority to determine abortion policy, mandated a pro-abortion rights regime. It was Roe that the Reagan administration, in a case that Alito worked on, asked the Court to overrule.

Senate Democrats almost certain to oppose Alito anyway are seizing upon his job-application essay to argue, in effect, that someone with his biography shouldn't be confirmed. Sen. Edward Kennedy has gone so far as to condemn Alito for having found something to like about the Goldwater campaign. Sen. Joseph Biden has declared that Alito's disagreement as a college student with the Warren Court's reapportionment decisions may constitute sufficient reason for a filibuster. Senator Patrick Leahy has complained that Alito was "an aggressive participant in an ideological movement"--meaning the conservative one headed up by Ronald Reagan. None of the Senate Democrats nor their allies have yet maintained that it was a crime for Alito to have read Buckley or Bickel or NR or to have tried to write for NR or TAS (we'd like to think The Weekly Standard would have been favored with an Alito submission had we been around those many moons ago--and we would have accepted it, too); nor have they yet condemned Alito for his membership in a just-begun Federalist Society or his contributions to conservative Republican candidates. It is not too early, however, to make the obvious point that being a political conservative is hardly disqualifying for the Supreme Court. Nor is having worked as a political appointee at a high level in the Reagan Justice Department.

That said, Alito's essay presents questions the nominee must deal with: among them, whether he still takes issue with Warren Court decisions involving criminal procedure, the Establishment Clause, and reapportionment; whether he continues to regard racial and ethnic quotas as illegal; and, to be sure, whether he still thinks the Constitution doesn't protect a right to abortion. Alito will be asked such questions during his hearings, and already senators are posing some in private sessions with the nominee. According to second-hand accounts of those visits, Alito has adopted the strategy of playing down his essay by saying he was an advocate applying for a job then and that he has held a very different job, as a judge, for the past 15 years, and that in his years as a judge his legal views have changed some, such that he has "great respect for precedent." Of course it is true that judging is different from advocating, and you would expect a lower-court judge to develop a very high regard for Supreme Court precedents, since he is bound to follow them. But it remains the case that the views Alito stated in his 1985 essay were plainly, and proudly, his own, and for that reason they cannot so easily be set aside. The better strategy for Alito is the more credible one of straightforwardly discussing the substance of what he wrote.

On the Warren Court's criminal procedure cases that he disagreed with as a college student, for example, he could cite the difficulties the early critics (of varying political views) found in Miranda v. Arizona and Mapp v. Ohio (assuming they are the cases the young Alito found problematic) and indeed the Supreme Court's subsequent narrowing of their reach, without prejudging how he might decide cases brought under either precedent today. Likewise, again without declaring how he might rule in some hypothetical case, he could point to the doctrinal difficulties in Establishment-Clause jurisprudence that the Warren Court handed to the Burger Court, which then (in 1971) propounded the notorious "Lemon test," dissented from by no fewer than six Supreme Court justices over the past 30 years. On reapportionment, Alito is telling senators that he is committed to the "one-man, one-vote" principle elaborated in the line of cases begun with Gray v. Sanders. Here again, it strikes us that Alito need not shy from relating his view of the reapportionment cases when he first encountered them in the late 1960s, and we suspect that he found persuasive the famous dissents of Justice John Marshall Harlan.

On quotas, Alito could relate his involvement in Wygant v. Jackson Board of Education (1986) without crossing the line into how he would see a hypothetical challenge to preferences today. (On Wygant, by the way, let whoever so desires defend the quotas that the Supreme Court struck down in that case.) Finally, on abortion, Alito could describe his participation in the 1986 Thornburgh case and review the widespread criticisms of Roe (Justice Ginsburg herself was a critic) without saying how he would opine on a hypothetical challenge to Roe or to Planned Parenthood v. Casey, in which the Court explicitly declined to overrule Roe.

Finally, Alito should be prepared for someone to ask whether he still is a political conservative, and how he feels today about his service in the Reagan Justice Department. Is it too obvious to state that conservatives will be annoyed if Alito says that he is no longer a conservative or proud to have worked for Reagan at Justice? That would be a confirmation conversion too horrible to contemplate. But we don't believe that Alito has changed his mind or has suddenly become timid. Again, being a political conservative is no disqualification for the High Court. And a conservative is what you'd expect to be named to the Court, if elections mean anything. At the same time, being able to distinguish between politics of whatever stripe and the law is what we rightly prize in a justice. This is where Alito's record on the bench is dispositive, for it demonstrates that in this important quality, he is an exemplary nominee.

--Terry Eastland, for the Editors