Bench Memos

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Yet More on Alito’s Questionnaire Response and the Thornburgh Case


Question 15.f of the Senate questionnaire states:

“Describe your practice, if any, before the Supreme Court of the United States. Please supply four (4) copies of any briefs, amicus or otherwise, and, if applicable, any oral argument transcripts before the Supreme Court in connection with your practice. Give a detailed summary of the substance of each case, outlining briefly the factual and legal issues involved, the party or parties whom you represented, the nature of your participation in the litigation, and the final disposition of the case. Please also provide the individual names, addresses, and telephone numbers of co-counsel and principal counsel for each of the other parties.”

Senator Schumer evidently maintains that the reference to “the nature of your participation in the litigation” in the third dependent phrase of the third sentence somehow should transform the entire request into a demand for information about any case in which Alito had “substantial” or “significant” involvement—whatever those vague terms might mean—irrespective whether he made an appearance in the case. (Here’s the Schumer letter.) I find it highly unlikely that any judicial nominee—and (for the reasons explained by former SG Fried and Alito’s former colleague Albert Lauber) especially any nominee who has served in the Solicitor General’s office—has ever construed the request so expansively.

Indeed, the last sentence of the request makes no sense under such an interpretation. Someone who has not made an appearance in a case would not have co-counsel. Or would Schumer maintain that this last sentence requires the judicial nominee to name all other attorneys who had substantial involvement in the case but did not appear as counsel?

The only credibility question raised by Schumer’s ridiculous charges is how anyone could think that Schumer has any remaining credibility.


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