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Some Practical Advice to Senators Preparing For Judge Alito's Confirmation Hearings


Friday, Jan. 06, 2006

On Monday, Senate Judiciary Committee hearings on Supreme Court nominee Samuel Alito are set to begin. In today's column, I offer five modest and practical pieces of advice for the Senators who will question Alito.

The advice applies to all interrogating Senators, on both sides of the aisle, who want to use the hearings to really learn something about the nominee, and teach something to the American people. But I should acknowledge up front that my suggestions may be especially relevant to Alito skeptics.

#1. Pick Your Spots, Rather than Trying to Cover The Entire Field of Constitutional Law

Even with a prolonged hearing, Senators could not come close to examining every important area of constitutional law. Major law school constitutional law textbooks today are literally hefty (often weighing over seven pounds) and lengthy (averaging over 1500 pages -- the one I co-author has almost 1900). Discussing all the material in any one of them, even in a cursory manner, would take three full semesters, rather than three weeks.

Moreover, even these constitutional casebooks are limited in certain ways. They barely even touch on the so-called "criminal procedure" aspects of the Constitution - for example, the guarantees of the Fourth and Sixth Amendments, and the Fifth Amendment's privilege against compelled self-incrimination and freedom from double jeopardy. Yet these guarantees and privileges make up a good part of the Supreme Court's docket.

And that docket, of course, is not confined to constitutional interpretation: Important and vexing statutory interpretation questions invariably arise in the high Court, demanding that the Court give meaning to seminal Congressional statutes, such as various civil rights acts and environmental laws.

For these reasons, Senators must invariably pick just a few areas of law to explore with the nominee, in the hopes that this (hopefully well-chosen) sampling will give a general sense of the nominee's approach to Supreme Court judging.

Which areas should be included in the sampling? If I were to identify a half dozen in the constitutional law arena, they might include:

(1) Equality rights. I'd focus on the government's ability or inability to use race to remedy past inequality. I'd also take a look at the so-called reapportionment cases involving the one-person, one-vote principle - cases as to which Judge Alito once voiced disapproval, a stance to which he may or may not currently adhere.

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(2) Intimate privacy rights. Among these, I would focus on the rights to contraception and abortion. Some commentators have questioned whether Judge Alito currently would be inclined to overrule Roe v. Wade - an especially interesting question given that the decision has already been reaffirmed, in Planned Parenthood v. Casey, but one that, as I will explain below, Alito will probably never answer directly.

(3) Limits on presidential power. With President Bush asserting a broad "inherent" executive power to defy the will of Congress when he thinks national security so requires, this issue could not be more timely. Among the topics I would focus on would be whether that power (if it exists) extends to activities of American citizens in America, and how much greater the President's powers really are in wartime. It might be interesting to know if Judge Alito considers us still to be at war, even after the Afghan and Iraq conflicts enter new phases.

(4) Federalism. In particular, I would probe Judge Alito's views on how much latitude Congress has to provide national solutions to problems that involve multiple states, and how much power Congress has to deal with state lawlessness.

(5) The weight of past precedent. How sacrosanct are past decisions of the Court?

(6) Religion in public life. How much freedom does government have to expend public resources in the direction of religious groups and organizations?

Within each of these areas, Senators will be best served to pick just a few good examples to use as vehicles for exploration. Operating shallowly across too many different areas or settings may only invite non-answers - or answers too vague to be helpful - from the nominee.

Of course, this list leaves out many important topics - such as the Takings Clause, the right to bear arms, most of criminal procedure, and limits on sexual and commercial speech, among many others. But as in any seminar, coverage must be limited - and confirmation hearings, in addition to serving their basic purpose of vetting the nominee, are also seminars in constitutional law for the American public.

#2 Be Concrete: Examples Will Keep an Audience's Attention

The temporal brevity of the hearings isn't the only constraint on the Senate. Perhaps more important is the attention span of the seminar audience - the American public, to whom the Senate should be trying to provide information, and from whom the Senate should then be looking for feedback.

Good teachers know the strengths and weaknesses of their students, and the Senate's audience has a limited attention span. For this reason, Senators need, in addition to picking the areas of law upon which they will focus, to be concrete in their presentation.

Constitutional law doctrine from the Court contains a lot of abstract ideas; it asks questions such as whether a regulation of expression is "narrowly tailored" to its objectives, whether a statute dealing with race is "necessary to accomplish a compelling interest," and whether a Congressional imposition on the States is "congruent and proportional" to the misdeeds in which States are allegedly engaged.

But there is simply no way non-lawyers are going to slog through this kind of jargon and theoretical complexity.

Thus, if Senators of both parties want the American public to understand what judicial "conservatism" or judicial "liberalism" means in their daily lives - and that ought to be the goal - then the Committee's questioning must focus on specific factual contexts in which the various legal tests get applied.

When asking about federal powers, for example, the Committee should not query the nominee about why the "economic nature of the activity being regulated" (an abstraction the Court often focuses on) should be so important. Instead, the Committee should ask the nominee why some specific national problems - like pollution or the preservation of endangered species - might, or might not, be able to have national solutions.

Or suppose Senators want to ask about the Fourth Amendment. They shouldn't simply ask the nominee what he thinks "unreasonable searches and seizures" means. Instead they should ask him why he thinks arresting a Texas soccer mom in a pickup truck for a seat-belt violation (the facts of a recent Supreme Court case) was, or was not, a reasonable seizure of her person.

#3. Ask About Past Supreme Court Cases, But in Smart Ways

As my last sentence (and a series of earlier columns I've written) suggests, I believe asking a nominee to assess past Supreme Court cases - even ones that involve issues that continue to come before the Court - is both necessary and proper in the Senate's advice and consent role. But even I concede that many questions about past cases are going to be dodged by the nominee (even though, as I have explained in earlier columns, the reasons given for not answering don't wash.)

In light of this reality, smart Senators should try to explore a nominee's views about past cases in a way that is most likely to yield some non-evasive answer. For example, a question to the nominee asking whether he thinks Roe v. Wade should be overruled (which I continue to think is a fair question) is simply not going to be answered in this day and age, unless the nominee's name is Robert Bork (whom I respected for his forthrightness). So if the Senate is going to ask about privacy cases, better to do so without posing only the "ultimate" question.

Thus, when the nominee declines to express his views on the legitimacy of Roe, ask him the following: "Many critics of Roe v. Wade seem to think that Griswold v. Connecticut (involving married couples' access to contraception) was correctly decided. What do you think about the distinction between a right to privacy that covers contraception, and one that covers a right to abortion?"

Similarly, asking a nominee about whether he thinks the Michigan law school decision upholding some limited race-based affirmative action was correctly decided is unlikely to yield a straightforward answer. But how about the following: "What evidence are you aware of that suggests that the Framers of the Fourteenth Amendment intended to foreclose race-based affirmative action, and didn't they themselves engage in some of it?"

Questions like these are about cases, but they are not styled directly in terms of case outcomes. Therefore, they might be more likely to be answered.

#4. Use Legal Devices, Such as Presumptions

One of the most important differences between the Alito hearings and the hearings for Chief Justice John Roberts is that many more of Judge Alito's early writings seem to express his own view of the correctness of certain Supreme Court rulings - rather than simply the views of his bosses (as seemed to be the case for many of Chief Justice Roberts' memos early in his career).

For this reason, if Judge Alito declines to express his current views as to these matters, Senators should argue that they are justified in assuming - or presuming, a lawyer would say -- that his past stated views continue to describe his feelings today. (Many areas of the law make use of a "presumption" that something that existed in the past continues to exist unless and until there is evidence of change; this legalistic reasoning may well apply to the "advice and consent" setting of confirmation hearings.)

It is one thing for Senators to presume the "best" about a nominee when the nominee has never stated views that might cause concern for Senators; it is another for Senators to place their faith in a change in the nominee's views that might have happened, but about which a nominee is unwilling to talk.

Once a nominee's past views are known, the burden should be on him to demonstrate that he no longer holds those past views. It would be wrong, I think, to put the burden instead on the Senate to demonstrate that he does indeed still adhere to those views, if he himself won't even address the subject. .

#5. Be Flexible, and Not Wedded to a Script

In many areas of legal practice, the question-and-answer sessions that most effectively yield information tend to be ones where the questioner is not tied to any set of pre-written queries, but rather can use impromptu follow-up questions to pursue interesting leads created by answers to prior questions. This is true of depositions and of live in-court cross examination, and of appellate oral arguments, and it should be true of Senate hearings as well.

Of course, this kind of flexibility requires that the questioners really know their stuff, and are comfortable in going "off script." Taking on a jurist as smart and experienced as Judge Alito head to head is surely a daunting task. And Judge Alito surely has every incentive to avoid giving information that might be contentious - indeed, if I were advising him, I would encourage him to say as little as possible.

But what is good for him, might not be good for the Senate or for the country. And no one said that running this seminar for the American people was going to be easy.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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