Few Glimmers of How Conservative Judge Alito Is - New York Times

Few Glimmers of How Conservative Judge Alito Is - New York TimesJanuary 13, 2006
News Analysis
Few Glimmers of How Conservative Judge Alito Is
By ADAM LIPTAK

WASHINGTON, Jan. 12 - In over 18 hours responding to some 700 questions at his Supreme Court confirmation hearings before the Senate Judiciary Committee, Judge Samuel A. Alito Jr. mostly described a methodical and incremental approach to the law rooted in no particular theory.

But to the extent Judge Alito claimed a judicial philosophy, it aligned him with the court's two most conservative members, Justices Antonin Scalia and Clarence Thomas.

Judge Alito completed his testimony Thursday amid substantial opposition from Democrats, who indicated they would not support him, but saw little chance of blocking his confirmation.

On one of the few occasions Judge Alito spoke about his general approach to the law, he embraced a mode of constitutional interpretation, originalism, often associated with Justices Scalia and Thomas.

"In interpreting the Constitution," Judge Alito said Wednesday, "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption."

Chief Justice John G. Roberts Jr., by contrast, described a more eclectic and dynamic approach to constitutional interpretation at his confirmation hearings in September. Justice Sandra Day O'Connor, whom Judge Alito will replace if he is confirmed, has also embraced a variety of approaches.

"Judge Alito sounded less amenable to constitutional evolution than Roberts," said Cass R. Sunstein, a law professor at the University of Chicago who studied Judge Alito's dissenting opinions at the request of Senator Edward M. Kennedy, Democrat of Massachusetts, but has taken no position on the nomination. "He is someone who is more likely to vote with Justice Scalia and Justice Thomas than Justice O'Connor."

On more specific constitutional issues, Judge Alito affirmed what Jack M. Balkin, a law professor at Yale, calls the modern catechism necessary for confirmation. Judge Alito said that Brown v. Board of Education, the 1954 school desegregation case, was correctly decided. He said the Constitution protected privacy in at least some aspects of procreation, endorsing two decisions giving constitutional protection to the use of contraceptives. And he said the principle of one person one vote is required by the Constitution.

Having agreed with those cases and propositions, though, Judge Alito largely drew the line at saying more, notably about abortion. He justified his approach by saying the first set of cases were unlikely to come before the Supreme Court and that other cases might well be revisited by it.

But he did provide some hints on an array of other issues. He rejected, for instance, the use of foreign legal materials in interpreting the Constitution. He said he had favored allowing cameras in the courtroom in his own court, the United States Court of Appeals for the Third Circuit, in Philadelphia.

On Thursday, he said he "can't think of a reason why" Congress could not outlaw employment discrimination against gay men and lesbians. And he said that a diverse student body was an important value in education.

It was the topics Judge Alito failed to discuss that concerned some scholars the most. Some questioned whether he had really drawn a principled line between the cases he viewed as finally settled, and so could discuss, and those he considered still to be in play.

Some of the cases and principles Judge Alito would discuss, said Vikram Amar, a professor at Hastings College of the Law in San Francisco, could "very easily come up over the next decade in the court, let alone the next three decades." Among the examples Mr. Amar gave were the use of foreign legal materials, a 1952 opinion on presidential power and diversity in education.

What Judge Alito would and would not discuss was telling, said Mark Tushnet, a law professor at Georgetown.

"You can infer from the areas in which he is willing to talk and not willing to talk," said Mr. Tushnet, who opposes Judge Alito's confirmation. "The only inference you can draw is that he doesn't agree with the abortion decisions."

Senator Joseph R. Biden Jr., Democrat of Delaware, asked Judge Alito on Thursday whether he shared the aggressive views of executive power discussed in a recent book by John Yoo, an architect and forceful advocate of the Bush administration's legal strategy in the aftermath of the Sept. 11 attacks. Judge Alito said he had not read the book, "The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11." But some of Judge Alito's answers suggested that he would not take as hard a line as Professor Yoo, who now teaches law at the University of California, Berkeley.

Notably, Judge Alito endorsed a 1952 concurring opinion by Justice Robert H. Jackson rejecting President Harry S. Truman's assertion that he had the inherent constitutional authority to seize steel mills during the Korean War. The opinion, in Youngstown Sheet and Tube Company v. Sawyer, set out a three-part sliding scale for considering clashes between presidential power and Congressional authority.

The president's power is at its "lowest ebb," Justice Jackson wrote, when Congress has forbidden a particular action. The administration has conceded that its domestic surveillance program violated the terms of a 1978 law requiring court approval for some intelligence gathering, arguing that it had authority to conduct the surveillance without warrants under both the Constitution and a Sept. 18, 2001, Congressional authorization to use military force.

In an interview Thursday, Professor Yoo said the balancing called for by the Jackson concurrence did not apply to the surveillance program.

"The Jackson concurrence applies to domestic matters which are outside the theater of combat," he said. The surveillance program, by contrast, is partly international, he said, and the theater of combat after the Sept. 11 attacks encompasses the United States.

Noah Feldman, a law professor at New York University, said the differing interpretations of the applicability of the Jackson concurrence were significant.

"It's very striking," Professor Feldman said, "that both Judge Alito and Chief Justice Roberts said they would apply Justice Jackson's concurrence in the steel seizure case, because it reflects a view of presidential power that is not unbounded and is not the strongest version of the unitary executive theory. If you were truly to follow Youngstown, you can't embrace the strongest version of the unitary executive theory."

Judge Alito endorsed a version of the unitary executive theory in a 2000 speech to the Federalist Society, a conservative legal group. The theory can mean, in its weaker form, that the president has full authority over the executive branch. In its stronger form, the theory means that there are areas of executive power into which Congress and the courts are powerless to intrude.

Professor Yoo said that what he called "the robust version" of the theory could conclusively answer the legal controversy over the surveillance program. "If gathering intelligence about the enemy is executive, then it can't be taken away" by Congress or the courts, he said.

At the hearings, Judge Alito embraced the weaker version. For Judge Alito, said Douglas W. Kmiec, a law professor at Pepperdine who served in the Justice Department in the Reagan administration, the unitary executive theory "goes more to the direction of fully executive subordinates than any type of claim of executive supremacy, which Alito has rightly denied."

If anything, Professor Kmiec continued, Judge Alito "has an understanding of executive power that is so well within the mainstream that Alexander Hamilton might think it timid."

Judith Resnik, a law professor at Yale, disagreed.

"He's fabulous at tautology," Professor Resnik said of Judge Alito. "He says the president is not above the law. He says the president can only do what the Constitution allows him to do. But he doesn't say what the Constitution allows."

"One of the absolutely essential questions of American law at the moment is the ability of any human being to call the executive branch to account before the courts," she added, noting that Justice Sandra Day O'Connor had affirmed that principle in a 2004 opinion allowing an American citizen to challenge his detention by the military. "That possibility must be available. What we have not heard from Judge Alito is a commitment to that point of view."

Judge Alito did indicate that he would take a relatively deferential view of Congressional power. "I would certainly approach the question of determining whether an act of Congress is constitutional with a heavy presumption in favor of the constitutionality of what Congress has done," he said on Thursday.

In the end, Judge Alito drew the line in what he would discuss almost exactly where Chief Justice Roberts had in his confirmation hearings in September. The similarity of the two men's positions should not be surprising, Professor Yoo said, as they were both government lawyers when Edwin Meese III served in the White House and the Justice Department in the Reagan administration.

"It shows the fruition," Professor Yoo said, "of the Reagan-Meese approach of grooming young lawyers in the 1980's who could do well at hearings 20 years later."