Politics & Policy

Alito Preview

What to watch for.

Today the Senate Judiciary Committee begins hearings to determine whether Judge Samuel Alito should be confirmed to the United States Supreme Court. President Bush has selected two outstanding Supreme Court justices; recently confirmed Chief Justice Roberts and Judge Alito are two of the best-qualified Supreme Court nominees in United States history.

Yet opponents of the president attempted to defeat Chief Justice Roberts, and have clearly initiated a vigorous campaign to defeat Judge Alito. Despite this pressure, Judge Alito’s nomination will succeed. His credentials are simply too impeccable, and the testimonials on his behalf too glowing.

The matter left in question, however, is how many of the 44 Democratic senators will acquiesce to special-interest groups who have provided a wealth of false allegations to discredit this fine nominee. Americans tuning in for the hearings may find useful the following information.

Cherry-picking from Judge Alito’s opinions.

Judge Alito has been a federal appeals-court judge for 15 years, authoring hundreds of opinions, voting in thousands of cases, and siding with every conceivable party on multiple occasions during that time, including employees, employers, criminals, and the government.

Yet listeners may not hear about Judge Alito’s record as a whole, for as such, his record is unimpeachable. He has repeatedly and consistently applied the law in an evenhanded manner. A 2004 study by two law professors found him to be the fourth most independent federal appeals-court judge in the United States. Viewers can expect to be well-informed, however, about the times Judge Alito has sided against the constituencies of liberal interest groups.

The principle of “one person, one vote.”

Special-interest groups have repeatedly asserted that Judge Alito opposed the principle of “one person, one vote” in a 1985 application for a job in the Reagan administration. This assertion is incorrect. Judge Alito simply voiced disagreement with a number of Warren Court cases on “reapportionment.” The Warren Court lasted some 16 years, deciding numerous such cases, only one of which, Reynolds v. Sims, established the principle of “one person, one vote.” Most of the other cases involved application of that principle to particular facts, with some of those cases so rigid in requiring precise mathematical equality between voting districts that even one of President John F. Kennedy’s appointees, Justice Byron White, dissented from them.

Judge Alito has made clear in his meetings with Senators that Reynolds v. Sims was not among the “reapportionment” cases he was referring to in his 1985 application. However, some senators will continue repeating this assertion as if it were true.

Impugning Judge Alito’s integrity.

Liberal special-interest groups have accused Judge Alito of hearing cases in which they claim he had a conflict of interest, including cases involving the Vanguard mutual-fund companies and his sister’s law firm. Yet legal ethicists who have examined these charges have concluded that Judge Alito acted properly–he did not own a substantial interest in Vanguard nor did he hear any case in which his sister participated.

Indeed, although Judge Alito was not required to recuse himself in any of the cases in question, whenever a party asked him to recuse, as one did in a case involving Vanguard, he agreed to do so out of an abundance of caution–hardly the hallmark of someone reckless with ethical obligations. Yet some senators may still attempt to create the impression that Judge Alito has engaged in unethical activity.

Wiretapping and national security.

When the National Archives released a memorandum from Judge Alito’s time in the solicitor general’s office regarding a case that went to the Supreme Court that involving wiretapping of domestic phone calls, special interest groups immediately accused Judge Alito of supporting warrantless wiretapping.

Yet that case, Mitchell v. Forsyth, had nothing to do with whether wiretapping was legal. The only question was whether the attorney general of the United States should be personally liable for money damages, or whether other remedies for wiretapping–such as injunctions, criminal liability, and the political process–were better options for checking the activities of government officials.

Judge Alito argued that the attorney general should be immune from suits for money damages, and the Supreme Court agreed, holding that the attorney general had at least qualified immunity.

The talking points emerging from special-interest quarters have already proven disappointing to those seeking to paint Judge Alito as an extremist–facts have refuted mere allegations. The week ahead will reveal how many senators will stand up against the rhetoric and instead pursue the truth. Meanwhile, Americans can be confident that Judge Alito’s tenure on the Supreme Court will be one of which they can be proud.

The Honorable John Cornyn (R., Texas) is an United States senator from Texas.


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