O’Connor read Ayotte from the bench on January 18, 2006. By that point, though, the longevity of her influence seemed ever more open to question.
24
“I AM AND ALWAYS HAVE BEEN…”
The lawyers in the Bush White House who researched possible nominees to the Supreme Court operated according to strict rules. Because they did not want the nature of their inquiries to be widely known—and because they had so many people to investigate—they examined only the public record. For sitting judges, they looked primarily at their published opinions and also ran the candidates’ names through databases like Nexis and Google. The small group of associate counsels did not, however, have the time or resources to search through the National Archives, so it was journalists who discovered the key document about Samuel Alito, two weeks after Bush announced his selection.
Alito had joined the staff of the solicitor general as a career lawyer in 1981, but he quickly established himself as an enthusiastic supporter of the Reagan administration. In time, he sought to move up to a position as deputy assistant attorney general in the Office of Legal Counsel, the official constitutional adviser to the president and the unofficial ideological command center during the Reagan years. The job was a political appointment, so Alito had to be vetted by the White House. The application letter that Alito wrote for the job, the document found in the archives, proved to be an easy-to-decipher Rosetta Stone about his political and judicial philosophy.
Alito’s letter of November 15, 1985, began, “I am and always have been a conservative,” and removed any mystery about the kind of justice he would be. But the treatment of Alito’s letter in his confirmation hearings illustrated other truths about the contemporary confirmation process, the difference between Democrats and Republicans, and the future of the Court.
When Roberts testified at his own hearing, he was asked about his authorship of the brief advocating the reversal of Roe v. Wade. The future chief justice parried the inquiry, noting that he was then a lawyer representing a client, President George H. W. Bush, whose opposition to Roe was a matter of public record. Roberts asserted that the position in the brief did not necessarily reflect his own views about Roe, which he declined to reveal. Alito, in contrast, had written in his 1985 application that “it has been an honor and a source of personal satisfaction to me to serve in the office of the Solicitor General during President Reagan’s administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.”
So there was no mystery about Alito’s personal beliefs. Indeed, the letter showed that his judicial philosophy, at least in 1985, was well to the right of where, say, even Rehnquist was in 2005. Alito had also written, “In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.” The major Warren Court decisions in these subjects were those creating the Miranda warning, banning government-sponsored prayer in schools, and calling for one person, one vote in legislative districting. Even conservatives like Rehnquist came to terms with these rulings, but such was Alito’s passion for the conservative cause in the Reagan years that he apparently found them too liberal. As a lower court judge for the past fifteen years, Alito had no right to overturn these precedents, but he gave every indication that he would if he could.
Despite Alito’s potentially extreme views, simple arithmetic made his confirmation nearly a foregone conclusion. As soon as he was nominated, it became clear that he would survive the most important test for any Bush nominee to the Court—what might be called the Republican primary, that is, the approval of the conservative base.
The full Senate, by comparison, would be easy for Alito. There were fifty-five Republicans, and all but a handful—Lincoln Chafee of Rhode Island, and Susan Collins and Olympia Snowe of Maine—would be certain to vote for a true conservative like him. (A moderate in other circumstances, Arlen Specter could not oppose a Bush nominee to the Supreme Court and keep his beloved chairmanship of the Judiciary Committee.) From the moment of Alito’s nomination, the only hope for Democrats to stop his confirmation would be to establish and hold a filibuster of forty or more senators.
No Supreme Court nominee in history who had the support of a majority of senators had ever been stopped by a filibuster. (In 1968, there was a filibuster against Lyndon Johnson’s nomination of Abe Fortas to be chief justice, but it was not clear that Fortas had the votes to be confirmed.) So a Democratic filibuster against Alito was unlikely, and if one had been attempted, it might have led to the elimination of the tactic for good. In advance of the debate, Bill Frist, the majority leader, was clearly itching for a fight so that he could invoke the “nuclear option” and do away with filibusters on judicial nominees once and for all. Such a move would have ingratiated Frist with the Republican base, whose support the Tennessee senator was then courting for a possible presidential run in 2008. (He later declined to run.) In short, the odds were always stacked against a Democratic attempt to stop Alito’s confirmation; there were simply too many votes on the other side.
Still, the reaction to his nomination among Democrats showed just how much times had changed since the Bork hearings. It was only a year since Specter thought the conventional wisdom was that nobody could be confirmed unless he or she supported Roe v. Wade. Samuel Alito and the Republican Senate were about to provide a specific refutation.
The Democratic Party had a base, too, and the pro–abortion rights position was just as important to these activists as the opposing view was to the conservatives. When it came to judicial nominations, the liberal position was embodied by People for the American Way, a well-funded, politically savvy advocacy group founded by Norman Lear, the television producer, and led by Ralph G. Neas, an architect of Bork’s defeat in 1987. PFAW had a membership list of 750,000 activists, and as soon as Alito was nominated, Neas set out to mobilize them against a man he called the embodiment of “the radical right legal movement.” Certain that Alito would lead the fight to overturn Roe and a host of other civil rights rulings, Neas insisted that he had to be stopped.
Neas’s protest drew a tepid response. Unlike Miers, Alito had a network of friends and former law clerks (some of them Democrats) who knew him well and were only too happy to give public testimonials in his behalf. In addition, Alito’s impeccable credentials—from his sterling academic record to fifteen years on the federal appellate bench—made it impossible for anyone to oppose him on the ground of his qualifications. (The American Bar Association screening panel unanimously found Alito “well-qualified.”) The only reason to vote against him—and it was the focus of PFAW’s effort—was that he was simply too conservative and would vote to overturn Roe v. Wade. But on this point the difference between the parties was manifest.
The Democratic base did not control its members the way the conservatives controlled the GOP. Moderate Democrats tended toward the center and so were unwilling to take up a filibuster. Alito’s handlers in the White House immediately sent him to meet with members of the Gang of 14, and the visits had the desired effect. Moderate Democrats like Ben Nelson of Nebraska responded to Alito neutrally to positively, and Republicans like Mike DeWine of Ohio and Lindsey Graham of South Carolina said they would invoke the nuclear option if the Democrats tried to filibuster. As DeWine observed accurately, “This nominee should not have shocked anyone. George Bush won the election.” By the time Alito’s public testimony began on January 9, 2006, the possibility of a filibuster had faded; his confirmation appeared all but assured.
“During the previous weeks, an old story about a lawyer who argued a case before the Supreme Court has come to my mind, and I thought I might begin this afternoon by sharing t
hat story,” Alito said when he first addressed the senators. “The story goes as follows. This was a lawyer who had never argued a case before the Court before. And when the argument began, one of the justices said, ‘How did you get here?’ meaning how had his case worked its way up through the court system. But the lawyer was rather nervous and he took the question literally and he said—and this was some years ago—he said, ‘I came here on the Baltimore and Ohio Railroad.’ This story has come to my mind in recent weeks because I have often asked myself, ‘How in the world did I get here?’ ” This leaden tale, which was greeted with mystified stares, turned out to be a fair augury of the testimony that followed. Alito was a dreadful witness in his own behalf—charmless, evasive, and unpersuasive.
In response to questions about his 1985 job application, Alito essentially dismissed the document. “When someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues,” he said. As for his current feelings about Roe, “I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision making.” Alito repeatedly declined to express a view about whether Roe should be overturned. Thus, under the peculiar standards of contemporary political discourse, all eighteen members of the Senate Judiciary Committee were expected to—and did—take a stand on Roe during their campaigns; but the only people who actually have a say on Roe, future justices, were allowed to refuse to answer.
Alito’s hearing came shortly after the New York Times disclosed that the Bush administration engaged in extensive warrantless wiretapping of phone calls to or from outside the United States. Going back to the Reagan years, Alito’s record suggested that he took an expansive view of executive power, though, characteristically, he declined to say much on the subject during the hearings. He did disown one sentence in the 1985 job application, when he said, “I believe very strongly in the supremacy of the elected branches of government.” That was a “very inapt phrase,” Alito asserted, because he actually believed in three equal branches. In almost his only substantive answer, Alito added, “I don’t think that we should look to foreign law to interpret our own Constitution”—evidence of how much Kennedy’s crusade on the subject had alienated conservatives. (Roberts had expressed a similar sentiment in his hearings.)
Bad as Alito’s performance was, that of his Democratic inquisitors was worse. Joseph Biden of Delaware resembled a parody of a bloviating politician, talking for twenty-four of the thirty minutes alloted for his initial questions. Ted Kennedy, the Massachusetts veteran of nineteen Supreme Court confirmation hearings, peppered Alito with a long series of manifestly unfair questions about his participation in a case involving the Vanguard mutual funds, in which the judge had invested. (Alito recognized his error and promptly recused himself in a case of such minor significance that it could not have affected his own portfolio.) Kennedy did annoy Alito by asking him about his membership in a group called Concerned Alumni of Princeton, which had conducted distasteful protests about coeducation and affirmative action at the college. But Alito’s role in the group was minor, and he diffused the issue by saying he was merely supporting the return of ROTC to the Princeton campus. Other Democratic senators made halfhearted attempts to engage the nominee on such varied issues as separations of powers, the environment, and law enforcement. Alito dodged with impunity.
In a crowning absurdity, on the third and next-to-last day of Alito’s testimony, Lindsey Graham decided to make a theatrical rush to the nominee’s defense. Graham mocked Kennedy’s line of attack and asked if Alito was a “closet bigot,” then expressed sorrow that Alito’s family “had to sit here and listen to this.” A moment later, Alito’s wife, Martha-Ann, burst into tears and rushed from the committee room. Her reaction was certainly peculiar, since it came during Graham’s ostentatiously sympathetic questioning. Even though there was no reason to think she staged an onset of the vapors, the day’s news focused on her tears, much to the nominee’s benefit. Any momentum in the Democrats’ direction disappeared.
The final vote in the committee, held on January 24, went along party lines, 10–8 for Alito’s confirmation. Senator John Kerry called for a filibuster against Alito, but he did so while on his trip to Davos, Switzerland, signaling a somewhat less than intense focus on the Supreme Court vote. (In a deft bit of mockery, Republicans assailed Kerry for politicking from a ski resort.) Few of Kerry’s colleagues joined his call to arms. When the time came for a vote on the Senate floor, on January 31, Alito’s opponents mustered forty-two votes against him—more than the forty needed for a filibuster. But many of the senators voting no made clear that they would not support a filibuster, so the fifty-eight votes in Alito’s favor amounted to a comfortable margin of victory.
Alito joined the Court almost four months to the day after Roberts, and the two of them struggled to keep up with the sudden onslaught of cert petitions and oral arguments. Their distinct coping mechanisms reflected the modest but real differences between them. Roberts immediately endeared himself to the loyal and long-serving Supreme Court staff by keeping on Rehnquist’s secretaries and some of his law clerks; he brought others with him from the D.C. Circuit. In recent years, some of the conservative justices on the Court had begun hiring slightly older law clerks who had both completed the customary appellate clerkships and spent some time in the Bush Justice Department. Alito took this practice to an extreme, hiring as his first clerk Adam Ciongoli, a thirty-seven-year-old senior vice president of Time Warner who had recently completed a two-year stint as one of John Ashcroft’s closest aides. It is easy to overstate the importance of law clerks, but the appointment of Ciongoli, who had clerked for Alito a decade earlier on the Third Circuit, suggested a closer than usual tie between the new justice and the administration. In any event, the fortuitous absence of blockbuster cases in the first few months of the Roberts Court allowed the justices to become acclimated to their new surroundings.
Curiously, the person most affected by the two appointments appeared to be Scalia, who had just turned seventy. In public, Scalia had joked about the possibility of becoming chief justice, but the recognition that his career had reached a final plateau seems to have encouraged him to shed his inhibitions. For all his theatrics in oral arguments and the panache of his dissenting opinions, Scalia simply did not love the job as much as his colleagues did. As far back as 1996, he had written to Harry Blackmun, “I am more discouraged this year than I have been at the end of any of my previous nine terms up here. I am beginning to repeat myself, and don’t see much use in it anymore.” Ten years later, Scalia was still repeating himself, and he was bored.
It should have been a glorious time for Scalia, with two new like-minded justices joining the Court. But as Scalia contemplated his twentieth anniversary on the bench, his legacy looked modest. Although his famous dissents often produced admiring chuckles among his readers, the dissents only rarely become law. In two decades on a generally conservative Court, his number of important majority opinions was almost shockingly small; asked at a public forum his favorite of his opinions—a common question for the justices in such settings—he came up with an esoteric case interpreting the Confrontation Clause of the Sixth Amendment.
Nor did Scalia have much influence on his colleagues. Most famously, from the beginning of his tenure, Scalia had actively repelled O’Connor, pushing her toward her moderate, swing role. He had a similar effect on Kennedy. Even Thomas had long since passed Scalia, en route to a kind of nineteenth-century conservatism.
And the two new justices, though they almost always voted with Scalia in their early days on the bench, seemed to be cutting independent paths. In his confirmation hearing, Roberts issued a nearly Breyer-style denunciation of Scalia’s originalis
m, saying, “I think the framers, when they used broad language like ‘liberty,’ like ‘due process,’ like ‘unreasonable’ with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.” Moreover, Roberts’s much-advertised minimalism clashed with Scalia’s more sweeping approach to writing opinions. As part of his “textualism,” Scalia shunned any reference to the legislative history of laws, preferring to interpret only the actual words of a statute rather than the congressional debates leading to a law’s passage. But in one of his very first opinions, Alito did cite legislative history, and Scalia, as he always did, dissociated himself from the reference.
Outside of the Court, Scalia’s frustration manifested itself in juvenile petulance. Few on the Court traveled as much as he did, and no one more enjoyed mixing it up with critical audiences. These confrontations did not always bring out the best in the justice. He called those who did not share his originalist approach “idiots” he invited those disappointed with the result of Bush v. Gore to “get over it” he called the international constitutional courts in Europe “the mullahs of the West.” In one episode, on March 26, 2006, at a church in Boston, a reporter shouted a question to him about his religious beliefs. “You know what I say to those people?” he replied, and then flicked his fingers under his chin at the questioner. “That’s Sicilian,” he explained. The next day, the Boston Herald wrote that Scalia had made an “obscene” gesture. Two days later, Scalia wrote a letter to the editor of the paper that read in part:
It has come to my attention that your newspaper published a story on Monday stating that I made an obscene gesture—inside Holy Cross Cathedral, no less. The story is false, and I ask that you publish this letter in full to set the record straight.
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