What Substantive Lessons Should We Learn from the Alito Hearings?

By EDWARD LAZARUS

Thursday, Jan. 19, 2006

With Judge Samuel Alito's confirmation to the Supreme Court all wrapped up except for the voting, the commentariat is busy gleaning lessons from the recently concluded hearings.

Appropriately, there is much lamenting over the Democratic Senators' penchant for bloviation, rather than penetrating examination. As just about everyone seems to agree, this penchant is partly (but not entirely) responsible for letting Alito get away with highly generalized, uninformative, and occasionally evasive answers to important questions.

Already, some useful suggestions are emerging for how Democrats can change the dynamic next time: One key suggestion is that Democrats appoint a special counsel to do most of the questioning, rather than having individual Senators engage in brief, unfocused exchanges with the nominee.

This reconsideration of process is an important discussion. But it would unfortunate if it were to block out a substantive assessment of the Alito hearings, and of what they may tell us about the how the electorate now views our constitutional heritage.

Constitutional Law's New "Catechism": Proof the Nominee Believes in Being Moderate

Although liberals have every reason to be deeply concerned about Alito's ascendancy to the Court, they should at least take heart that, in order to secure his confirmation, even in a Republican-dominated Senate, it was necessary for Alito to portray himself largely as a judicial moderate. In fact, Alito had to specifically disavow a number of important aspects of the right-wing legal agenda. And that is something in which liberals should take some pride - and a precedent on which, potentially, they can build.

As Yale Law Professor Jack Balkin recently noted on his blog "Balkinization," with the Roberts and Alito hearings, a "new catechism" has taken hold in constitutional law. Where not so long ago, Brown v. Board of Education was probably the only Supreme Court decision that was sacrosanct - the only one the nominee absolutely had to embrace, to be confirmed -- the list is now much longer.

Bork and Alito on the Right To Privacy: A Revealing Contrast

A quick comparison between Bork and Alito makes the point. Bork was lionized by the right for his rejection, specifically, of a generalized constitutional right to privacy, and, more generally, of the doctrine of "substantive due process" by which the Supreme Court had read such an unenumerated right into the Constitution.

Alito, by contrast, specifically averred that he did think the Constitution included a right to privacy (though he was vague about his contours). And, more meaningfully, he specifically endorsed the Court's privacy and equal protection decisions declaring the right of both married and unmarried persons to obtain contraceptives. (The decisions, respectively, are Griswold v. Connecticut and Eisenstadt v. Baird.)

To be sure, Alito refused to endorse Roe v. Wade, even to the qualified extent Roberts did in calling the decision settled law. But it is no small thing that Alito had to endorse both Griswold and Eisenstadt, which were the springboards to Roe, and also declare himself to have an "open mind" as to Roe itself.

Alito's Other Concessions, on the Issue of Executive Power

Such concessions to liberal jurisprudence, moreover, were by no means confined to the field of privacy.

On the issue of executive power - transcendently important at the moment - Alito was at great pains to limit his prior endorsement of the so-called "unitary executive" theory. This is the theory, of course, that undergirds the Bush Administration's naked grab for plenary power over foreign affairs, including the powers to torture and to wiretap, regardless of specific congressional prohibitions.

On this point, Alito claimed that his personal conception of the unitary executive theory did not have any bearing on the "inherent" constitutional power that Bush has claimed to support his NSA wiretapping program and other controversial initiatives in the fight against terrorism.

Instead, with respect to the President's inherent powers, Alito repeatedly endorsed Justice Robert Jackson's approach from Youngstown Sheet and Tube v. Sawyer, the case in which the Supreme Court denied President Truman the inherent authority to seize the nation's steel mills during the Korean conflict.

As I explained in my last column, Justice Jackson's approach deems the President's power to be at "low ebb" when he acts contrary to the will of Congress. That approach is thus anathema to the unitary executive theorists who seek to justify the Bush Administration's recent actions. So while Alito was careful not to condemn any of Bush's actions, the mere fact that he declared allegiance to Jackson's approach sets him in meaningful opposition to executive power zealots like Professor John Yoo, the author of the internal Administration memos justifying the Bush power play.

After Alito denied that his endorsement of the unitary executive theory related to Bush's claim of inherent presidential power, Senators pressed Alito on what his endorsement did mean. And the result was that Alito backtracked even further.

Specifically, Alito said that his conception of the unitary executive was concerned with the power of the president to control any agency engaging in executive functions. Now, this is a potentially radical notion. Currently, the various "independent" federal agencies, like the FCC and the SEC, are set up in a way that insulates the commissioners from removal by the President. But that arrangement, under Alito's view of the unitary executive, would seem to be unconstitutional because, under a unitary executive approach, the Constitution requires that the President be able to fire anyone and everyone beneath him in the hierarchy of the Executive - and that would include people like the head of SEC, who engage in executive functions.

Yet Alito was absolutely emphatic that, whatever the theoretical implications of unitary executive theory, he completely accepted the Supreme Court rulings that have rejected that approach, and have accordingly held the independent agencies to be constitutional.

In sum, Alito promised not to turn the clock back on the modern administrative state - as many conservative legal theorists want to do.

More Alito Concessions: In Favor of One Person, One Vote, and Against Originalism

Turning to other aspects of law, Alito recanted his previously stated opposition to the principle of "one person, one vote" and tried to assure the Senate that, many appellate court rulings to the contrary, he really did have the interests of the "little guy" at heart.

More generally, Alito also refused to endorse the jurisprudence of original intent - the approach that Bork disastrously advanced, and that is favored by Justices Antonin Scalia and Clarence Thomas.

Although Alito was less emphatic than Roberts is distancing himself from originalism, Alito explicitly stated that, while he would seek to discern general principles from the writings and speeches of the founding generation, he well understood that the trick to being a justice was deciding how to apply those principles to a modern world the framers could barely imagine. This description of his thought process, vague though it is, doesn't seem very controversial, and doesn't sound all that different from how a believer in a "living" Constitution might describe how the Framers' views should be considered by a judge resolving a particular case.

What Is the Significance of Nominees' Need To Present Themselves as Moderates?

My point here is not to suggest that Alito is going to be anything other than the very conservative jurist he has always been. On the contrary, I fully expect him to be more conservative than Roberts and perhaps as conservative as Scalia, though probably without the originalist trappings.

But it is still significant that conservatives appear to recognize that the legal rollbacks they seek are sufficiently unpopular with the public at large that no candidate for the Supreme Court can openly endorse them. Indeed, nominees have to explicitly repudiate much of the real right-wing legal agenda, or else risk Senate rejection.

This seeming disjuncture between right-wing jurisprudence and public opinion raises some intriguing possibilities.

One possibility is that Roberts and Alito will stay true to the moderate conservative image that they sought to project at the hearings. If so, the ideological shift at the Court will be fairly modest. It was, after all, already a conservative court by most benchmarks.

A second possibility is that either Roberts or Alito or both will treat their testimony before the Senate as a means for achieving life tenure, rather than as a sincere expression of their views - and that, over time, one or both with emerge as a radical conservative in the Clarence Thomas mold.

Naturally, such an eventuality would have significant consequences for the political balance of the Court. Depending on who replaces 85 year-old John Paul Stevens once he retires, if Roberts and Alito turn out to be radical conservatives, a major retrenchment becomes a very real prospect.

Take the litmus test issue of Roe. Could it be overturned? Yes - but only if Roberts puts the lie to his claimed belief that Roe is settled law.

That comment by Roberts strongly suggests that he will vote in favor of reaffirming Roe. So even if Alito and Stevens's successor were to vote to overrule Roe, the Court's vote would be still be 5-4 in Roe's favor. In the majority of five would be Justices Breyer, Ginsburg, Kennedy, and Souter and - ironically, since as a policy matter, he seems to be strongly against Roe - Chief Justice Roberts. In the minority of four would be Alito, Stevens's hypothetical successor, Scalia, and Thomas.

But what if Roberts does indeed vote to overrule Roe - despite his "settled law" claim? Or what if Alito similarly betrays his beliefs as expressed in his confirmation hearings?

If that occurs, the implications will extend far beyond the Court. If Roberts or Alito depart sharply from the image they projected during the Senate hearings, they will have made a mockery of the whole confirmation process, and thus of the right of both the Senate and the American people to know who they will really be getting as a life-tenured Supreme Court justice. The betrayal would be appalling, it would be plain, and its consequences would be longstanding and grave.

It is bad enough that the confirmation process has already turned into a contest to determine the bare minimum that a nominee must disclose in order to assure confirmation. It will be far worse if either Roberts or Alito, by their actions on the Court, suggest that the hearings are not merely an exercise in minimal disclosure, but also in outright prevarication.

Clarence Thomas laid down the seeds of such suspicion when he paid homage to precedent in his hearings, and then emerged as the most anti-stare-decisis justice of the modern era.

Against this backdrop, it becomes all the more imperative that Roberts and Alito stay true to the moderate, open-minded conservatism of their Senate testimony and show the nation that they were frank and truthful in their hearings.

The alternative will be to have our highest judicial officers effectively declare that anything goes in the fight for political and judicial power in this country. And what becomes of their purportedly cherished ideal of the "rule of law" if that happens?


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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