Outside the Beltway

Samuel Alito: Modest, Brilliant, and Nice

James Joyner · Tuesday, November 1, 2005 · 4 comments

A lengthy profile of Judge Samuel Alito in today’s NYT paints him as an uncommonly decent, modest man who, while very conservative is not an activist.

After a Career of Quiet Focus, Alito Is Leaving the Background

One weekend in 1986, two young lawyers working for Samuel A. Alito Jr., then a deputy assistant attorney general in the Justice Department, faced a looming deadline for a legal analysis and realized they would have to work all night to get it done. “In the legal world, most bosses would say, ‘This is what I want on my desk in the morning,’ ” said John F. Manning, one of the lawyers. “Sam stayed with us. He went out and got pizza and he pulled the all-nighter with us. I’ve never seen anything like that before or since.”

Throughout his life – ever since he resolved his high school indecision between his dream of a career in baseball or a life in law – the self-effacing Judge Alito, President Bush’s new choice for the Supreme Court, has made his mark with quiet dedication rather than showy display. He has cloaked his formidable intellect in modesty, an attribute both surprising and endearing to colleagues in high-octane legal circles.

While Judge Alito, 55, has built a reputation for decency, he has also compiled a conservative record that is coming under intense scrutiny from activists on the left and the right who understand his potential for shifting the balance on the bench. Larry Lustberg, a former federal prosecutor who has known Judge Alito for 22 years, called him “totally capable, brilliant and nice.” But Mr. Lustberg added, “Make no mistake: he will move the court to the right, and this confirmation process is really going to be a question about whether Congress and the country wants to move this court to the right.”

Theoretically, that’s what the 2004 election was about and these hearings are about whether Alito is qualified to sit on the Supreme Court. Practically, Lustberg is right.

Judge Alito’s jurisprudence has been methodical, cautious, respectful of precedent and solidly conservative, legal scholars said. In cases involving the great issues of the day – abortion, the death penalty and the separation of church and state – Judge Alito has typically taken the conservative side. Yet he has not flaunted his political views inside or outside the courthouse. Friends say Judge Alito seems to have inherited a distaste for shows of ideology from his father, an Italian immigrant who became research director for the New Jersey Legislature and had to rigorously avoid partisanship.

Judge Alito won prestigious academic prizes while at Princeton and Yale Law School, where he stood out for his conservative views, which were in the minority, as well as for his civility in engaging ideological opponents. “The notion that he’s an extreme conservative is wrong,” said Mark Dwyer, Judge Alito’s fellow student at Princeton and roommate at Yale. “Sam is conservative because he’s a straightforward believer in judicial restraint – that is, a judge’s personal views should not dictate the outcome of the case.” Even in the Reagan Justice Department, where a palpable sense of conservative triumph was in the air, “I never got the sense that he thought about legal issues in an ideological way,” said Mr. Manning, now a professor at Harvard Law School.

But Walter F. Murphy, an emeritus professor at Princeton who supervised Judge Alito’s undergraduate thesis on the Italian Constitutional Court and has kept up with him in the years since, said his former student believed in ruling according to an “original understanding” of the Constitution. The phrase is generally used to describe legal theorists, like Justice Antonin Scalia, who believe judges should try to figure out what the Constitution’s drafters would have ruled in contemporary cases. Friends say references to Judge Alito as “Scalito,” a name meant to suggest that he is a clone of Justice Scalia, the court’s most robust conservative, are off the mark and demeaning.

Indeed, Scalia scoffs at the notion that judges should try to decipher what the authors of relevent documents meant, prefering to see what they actually wrote.

At Yale Law School, where he was in the class behind Justice Clarence Thomas, Judge Alito was widely regarded as one of the smartest students, said Peter Goldberger, a classmate. Mr. Goldberger, who describes himself as a staunch liberal, said it was always enjoyable to get into a discussion with the young Mr. Alito. “We fundamentally disagreed over just about everything,” he said, “but it led to cheerful jousting.”

Mr. Goldberger, who has also argued dozens of criminal appeals before Judge Alito, said his style on the bench – as the member of a three-judge panel who talks the least but asks the most perceptive questions – recalled their Yale days. “At Yale, he wasn’t someone who spoke frequently in class,” Mr. Goldberger said, “but when he did it was something you wished you had said. It’s the same way on the bench. He’s always asking the right question.”

Anthony T. Kronman, a Yale classmate who went on to become dean of the law school from 1994 to 2004, said Judge Alito stood apart from many classmates who wanted to be social reformers and saw the law as an instrument of change. “He appreciated the traditions,” Mr. Kronman said. “He seemed to take real pleasure in the intricacies of the law.”‘ Then, as later, he said, Judge Alito did not wear his political leanings conspicuously. “If you asked me the day we graduated whether Sam was a Republican or Democrat,” he said, “I couldn’t have told you.”

Alito certainly comes across as exactly the kind of person one would want a Republican president to nominate to the Supreme Court. Yes, he will likely rule in a way that will favor conservative policy positions–although not always, as Scalia, Thomas, and Rehnquist often showed, since conservative jurisprudence and conservative governance are not the same. But he’ll approach cases with intellectual nuance and humility.

My guess is that, like John Roberts, most Americans will decide that Alito is a good nominee and that even a lot of Senate Demoocrats will agree.

Update (0646) : WaPo’s Charles Babbington argues that Republican moderates could derail Alito.

As Democrats Lead Opposition, GOP Moderates May Control Vote (p. A9)

Senate Democrats will lead the opposition to Samuel A. Alito Jr.’s Supreme Court nomination, but a handful of Republican moderates could ultimately decide its outcome, several analysts and lawmakers said yesterday. The roughly half-dozen GOP senators who support abortion rights are scrutinizing Alito’s dissent in a major 1991 abortion case. If they determine that his judicial record or his answers to questions signal a willingness to overturn the 1973 Roe v. Wade ruling that legalized abortion, they will fall under heavy pressure to oppose him, said congressional scholars and analysts.

With Republicans holding 55 of the Senate’s 100 seats — and with Democrats raising the possibility of a filibuster, in which 41 senators could prevent a confirmation vote — Alito can withstand few Republican defections if Democrats solidly oppose him. That is by no means certain, experts note, but it is possible.

[…]

His first inquisitor will be Chairman Arlen Specter (R-Pa.), a moderate who supports abortion rights and is viewed with deep suspicion by the far right. The nomination “certainly puts Specter in a very awkward position,” said Ross K. Baker, a congressional scholar at Rutgers University. “He has been so outspoken in being pro-choice, if he gets a hint that Alito would overturn Roe v. Wade , he would certainly be against his confirmation.” Yesterday, Specter met with Alito for more than an hour. He later told reporters the nominee signaled he would be reluctant to overturn any Supreme Court ruling that had been reaffirmed many times over many years, as Roe has been. “I think he went farther than [Chief Justice John G.] Roberts went” in agreeing that long-standing rulings deserve great respect, Specter said. “He used the term ‘sliding scale,’ and said that when a case has been reaffirmed many times, it has extra — I think he said ‘weight’ — as a precedent.”

The Senate’s other best-known Republicans who support abortion rights — Susan Collins and Olympia J. Snowe, both of Maine, and Lincoln D. Chafee of Rhode Island — issued cautious statements yesterday. Chafee said the Alito nomination “raises many concerns,” and that the dissent in Casey “showed a narrow view of a woman’s right to choose.” A few other Republican senators, including Kay Bailey Hutchison (Tex.), generally eschew the “pro-choice” label but say the right to legal abortions under some circumstances should remain.

The notion of even a few GOP defections could prove worrisome to the White House. All 55 Republicans, plus 22 of the 44 Democrats, voted to confirm Roberts as chief justice Sept. 29. Alito is virtually certain to draw more Democratic opposition than Roberts did, making every Republican vote more important.

It strikes me as highly unlikely that any of these Republicans will vote against Alito based on the abortion issue. Further, even some of the Gang of 14 are signaling their support:

Sens. Lindsey O. Graham (R-S.C.) and Mike DeWine (R-Ohio), members of the bipartisan Gang of 14 that drafted a pact on judicial filibusters in May, said they almost certainly would oppose an effort to use endless debate to keep Alito’s confirmation from reaching a Senate vote.

John McCain, too, issued a supportive statement yesterday. My guess is that Alito will get fewer votes than John Roberts but will nonetheless be confirmed easily. Roberts got 78 votes, including all 55 Republicans, half the 44 Democrats and even “independent” James Jeffords.

Update (0843): More evidence that Alito is likely to pass muster with the moderates:

Specter goes to bat for high court nominee (MSNBC)

Senate Judiciary Committee chairman Sen. Arlen Specter, R-Pa., sent strong signals Monday that he would use all his clout to help federal appeals court judge Samuel Alito win confirmation to the Supreme Court. Time and again Specter used his Monday afternoon press conference to defend President Bush’s nominee to the high court and to justify some of his controversial rulings. “I think he’ll be an excellent witness,†Specter predicted. Drawing an implicit contrast with ex-nominee Harriet Miers, who withdrew last week after getting a tepid reception from the Senate, Specter said “he’s a real legal scholar beyond any question.â€

This makes breathless pieces like this seem hyperbolic:

Both parties prepared for ‘Armageddon’ fight (WaTi)

Senate Democrats and Republicans — along with interest groups both for and against Judge Samuel A. Alito Jr.’s Supreme Court nomination — fell into formation yesterday to begin the battle they’ve been expecting for more than a decade. “This one is going to be Armageddon,” said Sen. Orrin G. Hatch, Utah Republican and former chairman of the Senate Judiciary Committee.

Majority Leader Bill Frist, Tennessee Republican, acknowledged that the fight will be tough, but predicted confirmation before the end of the year. “In 1990, a Democrat-controlled Senate unanimously confirmed Judge Alito as a circuit judge,” Mr. Frist said in a statement dispatched 27 minutes before President Bush announced his selection. “I hope that my colleagues will give his nomination a fair opportunity this time as well.”

Moments later, Sen. Charles E. Schumer, New York Democrat and member of the Judiciary Committee, took to the ramparts opposite Mr. Frist. “It is sad that the president felt he had to pick a nominee likely to divide America instead of choosing a nominee in the mold of Sandra Day O’Connor, who would unify us,” he said. “This controversial nominee, who would make the court less diverse and far more conservative, will get very careful scrutiny from the Senate and from the American people.” Sen. Patrick J. Leahy, Vermont Democrat and ranking minority on the Judiciary Committee, called the nomination “needlessly provocative.”

The usual suspects are stoking up the fires. Ultimately, though, the GOP has the votes to pass this guy and the Democrats aren’t going to go to war over a guy the general public will almost certainly find within the mainstream. Since at least three Republican members of the Gang of 14 have indicated that they don’t think “unusual circumstances” are in play, it also strikes me as incredibly unlikely that the Democrats want to stake the fight over the “nuclear option” on this nominee.