December 3, 2005

"People don't understand what happens to you when you become a judge. When you take that oath, you are transformed."

The NYT has this news article on yesterday's meeting between Samuel Alito and Senator Arlen Spector:
The White House and Mr. Specter hastily arranged the visit after an uproar over Wednesday's release of a 1985 memorandum reflecting Judge Alito's passionate belief that Roe v. Wade, the Supreme Court's landmark abortion decision, should be overturned....

"Well, Judge Alito characterizes it as a personal opinion," Mr. Specter said. "I don't. That's what Judge Alito says."...

[A] colleague of Judge Alito, Judge Edward R. Becker of the Third Circuit, who is also a close friend of Mr. Specter, said Friday that the memorandum did not reflect Judge Alito's approach on the bench, which he said was to look "at every case anew with an open mind."

"It is not the Sam Alito I know," Judge Becker said. "People don't understand what happens to you when you become a judge. When you take that oath, you are transformed. You are a different person. You have a solemn obligation to be totally impartial and fair."

Mr. Specter said that was the point Judge Alito made in their meeting.

He said the judge "raised a sharp distinction, as he put it, between his role as an advocate and his role as a judge," adding, "And with respect to his personal views on a woman's right to choose, he says that is not a matter to be considered in deliberation on a constitutional issue of a woman's right to choose, the judicial role is entirely different."
And the NYT has this editorial, expressing a lot of skepticism but stopping short of rejecting the nomination. Its bottom line is the same as Specter's: "The Senate needs to look through the cloud of explanations and excuses and examine where Judge Alito really stands on abortion rights." That is, we know with some assurance what he thinks of abortion. The question for a judge is what he thinks about rights.

Judge Becker says, "People don't understand what happens to you when you become a judge. When you take that oath, you are transformed." Well, people quite rightly don't "understand" that you become "transformed" into some inhuman machine that can generate purely legal reasoning. Efforts to convince us that you undergo a complete transformation fail because we are not dupes. We've trained ourselves not to believe assurances about the pure motives of those who would take power. But some transformation must take place, if we are talking about a human being who has enough moral character to be considered for the position in the first place. We also go wrong if we imagine that judging is nothing but repackaged politics.

Still, if we know a judge's attitudes will surely, if subtly, affect decisions, we've got to worry when the nominee has clearly expressed personal hostility to a right we care about. The fight to deprive women of the control over the insides of their own bodies has gone on too long already. Now, we are threatened with a new surge of legal attacks, as a newly configured Court revives the hopes of the opponents of abortion rights. I've supported the Alito nomination because I recognize the significance of the President's appointment power and because Alito is clearly an accomplished man of excellent character. But I do think he needs to demonstrate a commitment to the structure of constitutional rights that we have counted on for so many years.

UPDATE: Let me add a word about the fact that Alito has taken various positions as a legal advocate and not simply as a private individual. Aren't his ideas about abortion, expressed in legal writing, as an advocate, something that relate to abortion rights and not simply to abortion? An advocate has a goal in mind and, in pursuit of this goal, searches for legal arguments that might persuade a court. What an advocate does with legal texts and arguments is different from what a judge does. Advocates don't really think their arguments are the best answers, just that they are professionally arguable and would produce the desired results. If you asked the advocate to be honest and say what he would decide if he were the judge, assuming this advocate was honest and ethical, he would often admit that he would reject his own argument. Thus, Alito can properly distinguish the arguments he supported as an advocate with the goal of overturning abortion rights from the opinions he would reach as a judge.

30 comments:

Joe Giles said...

I hope Alito doesn't do anything to undermine the rights of a woman to use meth the week before she gives birth.

We've fought too long have these rights tampered with.

Ann Althouse said...

Well, Jonathan, if that's what Alito thinks about rights, he should say it. See how that goes. If he thinks it and withholds it, and comes out with it later, that would be worse.

Anonymous said...

I`m glad I can get some insight from someone who knows something about this. i.e. your credentials are of value, to me anyhow.
good post

Robert said...

Ann wrote "But I do think he needs to demonstrate a commitment to the structure of constitutional rights that we have counted on for so many years."

If you believe as I do that Roe was a really cruddy piece of Constitutional "reasoning", making up a right from penumbras and emanations, the passage of time doesn't gild that lily. I want a judge who demonstrate a commitment to the constitutional rights that are in the constitution rather than in his (or her) philosophy. It is true that many people have come to depend on such "rights" but then a lot of people came to depend on separate but equal in the 60 odd years between Plessy and Brown too...and you know the rest.

reader_iam said...

I guess I'm always a little cautious about the word ideologue, because it is so loaded these days and gets tossed off rather cavalierly (and no, MARK, I'm not accusing you of that--I don't believe that's what you're doing here, actually).

The definition (and of course, we can Google many) I associate with that word is "blindly partisan advocate or adherent of a particular ideology."

I'm going to tread lightly here, because I'm not a lawyer and assuredly have not read the vast number of opinions and materials that most of you all have.

But, temperamentally at least (and in this case I'm referring to both mind and personality), Alito doesn't strike me as "blindly" partisan. He seems more thoughtful than that, to this layperson at least. (Think about some of the other potential Supreme candidates that were pushed forth by the truly ideological, but then skipped over for nomination.)

He may actually be one of those rare individuals who can "hold two thoughts in his mind at once", and if so, isn't that exactly the sort of person we want in our courts? Whether this is so or not is what I'm most hoping to find out as we go through the hearing process.

Just thinking out loud ... as one of the great unwashed out here.

Steve Donohue said...

Either way, this is probably "Pro-Life's last hurrah", right? I mean, if both Roberts and Alito (or even if either of them) end up becoming a reliable vote in favor of Roe, we'll still have only two or three votes against Roe with two-ninths of the court changed for a long time to come. Sure, Stevens and Ginsburg could both leave and both be replaced by pro-lifers, but if not, this precedent is going to stand at minimum another 20 or 25 years. By then, most Americans won't even have been born when Roe was decided- it'll pretty much be settled law. This is their last chance.

Not that I really care either way. I am not a woman, and so any decision doesn't really affect my life much either way (I also live in Illinois, and so abortion would be available after Roe as well). But I must say as a small-government libertarian type who's mildly (but apathetically) pro-choice, I do believe Roe benefits politically the party who is supposed to nominally represent my interests. Even pro-choicers like me have a tough time swallowing propositions that if I happen to impregnate my girlfriend (or fiancee, or wife), whe could terminate what is my child without so much as even telling me and allowing us to have a discussion. I'm not anti-abortion, but it's little absolutes like that on the pro-choice side that turn me away from the message.

In the end (based on absolutely nothing except what we've heard), Roberts will be somewhat pro-Roe with certain Caveats, and Alito will be against it. That doesn't matter. Social conservatives are running out of time.

Anonymous said...

Day 4, and still no mention of the memo....

I kid, I kid.

Troy said...

ALito's memo is not controversial. In 1984 ALito's view was the view of many states and was settled common law principle for hundreds of years. DOn't we want judges who will stick to precedent? Oh wait! only if it fits your worldview!

The officer in Garner was not found liable since he did not violate the law. SCOTUS changed the law from then on. I bet ALito's memo in 1986 -- post Garner would've said something different since they wouldn't have been able to make such an argument "reasonably".

Troy said...

And Mark... you write "pro-police" like he's got syphilis.

Unless you're a badass all the time, the police make it possible for you to do whatever it is you do. You might show a little respect unless you think judicial rights just enforce themselves. Who are you going to call to drag all those offensive baby Jesus's out of town sqaure? :-) I kid, sort of.

Ann Althouse said...
This comment has been removed by a blog administrator.
Ann Althouse said...

Robert: Roe has been restated by the Court in more solid terms. In any event, stare decisis matters, and individuals who have been told they have a right have an interest in preserving it. It is outrageous for the Court to claim an extra power to revoke rights based on the low quality of its own writing. Roe has been reexamined repeatedly and affirmed. Women's equal participation in modern life is premised on control of their bodies' capacity to become pregnant. Threatening to take that away ought to cause great alarm. I understand the strong moral feeling against abortion, but it should be channelled into the work of persuading women not to have abortions, not strongarming us into unwanted pregnancy.

Troy said...
This comment has been removed by a blog administrator.
LoafingOaf said...

While I do think women should have the right to abort a baby at least early on in a pregnancy, I also think it would - in the long run - be good for America to overturn Roe.

I am sick of every election in this country being dominated by abortion, abortion, abortion. My entire life it's abortion blah blah blah, and it never changes. I am sick of the hardcore pro-lifers and pro-choicers and the way they turn every election and judicial nomination into the same old abortion stuff.

If the Court overturned Roe, the debate of abortion would be turned over to the people to work things out democratically. This might scare people, but it really is the only way to eventually end the near civil war climate over this issue. It also would allow us to have judicial confirmation hearings that are about something other than abortion or anti-abortion litmus tests.

Overturning Roe, IMO, would reduce the power of hardcore pro and anti abortion groups. Republicans, in particular, would have to feel the pain of voters if they take away rights that the people want. Indeed, many believe the Republicans secretly don't want Roe overturned because it would be horrifying to them politically.

I understand that people have replied on Roe for decades, but nothing is ever gonna change on the abortion debate in this country for as long as Roe is the law. The fact that so many people believe they have the right to abort tells me that if Roe were overturned you'd see Republican politicians suddenly becoming moderates on the issue overnight.

vbspurs said...

He may actually be one of those rare individuals who can "hold two thoughts in his mind at once", and if so, isn't that exactly the sort of person we want in our courts? Whether this is so or not is what I'm most hoping to find out as we go through the hearing process.

Exactly.

And well-done for defining 'ideologue' even if via Google, Reader_Iam.

The way I have always understood it is an idealogue is someone who sticks to an ideology so completely, as to ignore even correct points from another side of the argument.

If people want to call others who hold particular views on a topic, partisans, fine, but ideologue is a terminology a road too far.

Just thinking out loud ... as one of the great unwashed out here.

Oh come now, R/I.

Save this for the Ivy League circuit.

We're all just folks here, and anyone who thinks otherwise is fooling him/herself.

Cheers,
Victoria

Unknown said...

How bout for starters we ask for a Supreme Court Justice who doesn't think the 9th amendment is an "inkblot" . . .

Ann Althouse said...

Cinncinatus: Take the time to read my old posts before spouting such absolute garbage about me! You are not familiar with my ideas at all. I should delete your comment for being so abjectly ignorant, but I will leave it as a testament to you disrespect and presumptuousness.

Anonymous said...

UPDATE: Let me add a word about the fact that Alito has taken various positions as a legal advocate and not simply as a private individual. Aren't his ideas about abortion, expressed in legal writing, as an advocate, something that relate to abortion rights and not simply to abortion? An advocate has a goal in mind and, in pursuit of this goal, searches for legal arguments that might persuade a court. What an advocate does with legal texts and arguments is different from what a judge does. Advocates don't really think their arguments are the best answers, just that they are professionally arguable and would produce the desired results. If you asked the advocate to be honest and say what he would decide if he were the judge, assuming this advocate was honest and ethical, he would often admit that he would reject his own argument. Thus, Alito can properly distinguish the arguments he supported as an advocate with the goal of overturning abortion rights from the opinions he would reach as a judge.

Related: this is precisely why I think law professor bloggers (i.e. Glenn Reynolds, Powerline, et. al.) think its okay to lie about the war. They do not feel they need to tell the entire truth, but that the entire truth is the responsibility of the hegelian dialectic.

Us stupid software engineers have another word for someone that will due, say, argue, design, code, just what the client wants and for money regardless of our actual beliefs.

The word is not advocate.

Troy said...

Cincinnatus -- you need to read your Blackstone and Hale and perhaps White's opinion in Garner. It was no felony to "slay" a fleeing felon under the common law. So the fleeing felon rule was not unheard of at the time of Garner and was indeed a known principle and was most likely in the training of POs at the time (obviously in those states that still had the rule) -- just like Garner and Graham are hammered home now in training.

I agree with White -- the weapons and training and the Penal Codes are such that a broad deadly force law is excessive, but Alito's position would hardly be considered controversial in 1984 and not out of the mainstream. Besides all that -- he was a hired advocate hired to argue his client's position and it appears he did so.

Since the real Cincinnatus was known as a relatively humble man -- dial it down a notch. "Lighten up Francis" in the immortal words of Warren Oates.

Ann Althouse said...

Quxxo: "Related: this is precisely why I think law professor bloggers (i.e. Glenn Reynolds, Powerline, et. al.) think its okay to lie about the war."

Your comment would be better if you didn't spoil it with the word "lie." Avocacy isn't lying. The professional standard excludes lying. But one does marshall the facts and characterize them in a way that best suits goals that one has for reasons other than the analysis one is presenting. You also show your own bias by limiting your comment to hawkish bloggers. The anti-war bloggers do it, just for the other side. Your comment, shorn of the glaring overstatement and bias (which isn't the professional standard), is simply the observation that lawyers who blog use their lawyerly skills, often to great success.

Ann Althouse said...

Mark: I agree that Alito's effect on the Establishment Clause will be very strong -- unless Roberts takes a pragmatic, modifying role, which I think is somewhat likely.

Anonymous said...

law professor bloggers

I expect professors to not be "advocates" in the sense of using lawyerly skills to marshall the facts and characterize them in a way that best suits goals that one has for reasons other than the analysis one is presenting.

When a lawyer does that in a courtroom, she knows there is someone presenting "the other side".

When a professor does that in a classroom, she knows she is biasing and injuring the students.

When a professor blogger does that on their blog, they know they are neither upholding the ethics and principals of the teaching profession nor honoring the community that depends on their honesty and rewards them with the perks of an entitled, professional class.

Bah!

And other bloggers surely do lie, to quote Sturgeon's law 90% of everything is crap, but I was referring to law prof bloggers which cannot seem to separate advocacy in a courtroom from truthtelling in the public arena.

You also show your own bias by limiting your comment to hawkish bloggers Every observer is biased, c.f. Heisenburg, Picasso, Thompson. Pretending to be objective is wrong, and a lie. But one can be biased, and still discuss the pros and cons of your arguments as well as the opposing side's arguments. See Yglesias and Krugman for excellent examples.

Presenting only one side, and claiming you are objective, and not revealing your own biases, or clarifying that you are speaking as an advocate, or even using your educational background and professional experience as an advocate, is a lie. I don't care which side does that. It is a lie.

However, as it turns out, Reynolds, Hewitt, Volokh are all con law professors.

Anonymous said...

Am I right in thinking that peer reviewed law articles must take a different tack than the pure advocacy demanded in the courtroom? If so, why should blog, tv interview and/or public articles be more courtroom than law journal, especially when promoted by someone that is not making it clear they are an advocate of one side?

Ann Althouse said...

Quxxo: "Peer reviewed law articles"? You think lawprofs' scholarly articles are peer reviewed? Ha ha ha. We have the game much better structured for our advantage than that!

Anonymous said...

Sigh. Well, congratulations on that.

Ann Althouse said...

Mark: I just think Roberts came across as a more pragmatic thinker, which makes me think he may not find the strong rule-based approaches (such as neutrality re funding) as appealing as Scalia and Thomas do. That doesn't mean people should feel complacent about what is in the offing. In fact, I think people are going to be shocked at how quickly things change with respect to the Establishment Clause after O'Connor is gone.

Ann Althouse said...

Mark: My position on Alito has in fact always been the same. Alito would have to reveal himself as lacking in judicial values, which, as you know, he will not. The fact is Bush has the appointments power, and he won two elections saying he would appoint someone like Scalia or Thomas. I respect that.

Ann Althouse said...

Mark: That was more than 20 years ago. I am not consistent with myself from that earlier period.

Ann Althouse said...

Mark: I think the key is to win the presidency and get the next appointment. If Bork had gone on the Court, it would have affected the presidential elections that followed and how future presidents made their selections. I think turning the nomination into a political struggle at the level you seek degrades the Court and makes it less able to enforce rights in the future. Trying to take down Alito by any means possible is very shortsighted. You have to look at the whole picture.

Ann Althouse said...

Mark: Everything would have been different. Maybe Bush Sr. wouldn't have won the next election. Maybe Clinton would have put two hardcore liberals on the Court instead of the consensus nominees he chose. The entire political discourse would have been different if Bork had gone on the Court. The conservative judicial movement would not have gotten the same traction. Etc., etc. If you think everything else would have been the same, you're not making any sense.

Bruce Hayden said...

As an attorney, I do see a lot of difference between an advocate and a judge. An advocate's job is to make his side and its facts look as good as possible. Not only do you pick the facts that most help your case, you to some extent pick the law that helps your case too. Technically, you don't ignore adverse precedent, but in reality, you distinguish it. That means pointing out why it really isn't applicable, and other, more favorable, precedent is more applicable.

Judges on the other hand are supposed to sit in the middle and try to divorce themselves from their personal feelings on the cases in front of them (and if they can't they should be recucused).

Let me note that this is not the way things are done in other parts of the world. Even in England, at least in criminal cases, the judges seem to take a more active role, and it is even more so under the Civil Law countries like France, etc. (I remember one long talk I had with Michael Froomkin (U. Miami) where he pointed this out to me in gory detail).

I have yet to see any of Judge Alito's cases where his judicial decisions (or dissents) were not heavily based on the prevailing law of the time. The point is that it is irrelevant what the Supreme Court did afterwards with his cases. Rather, I would suggest that he was doing precisely his job - determining the law as it was at that time. I think that he wouldn't have been doing his job if he had changed the law and then been affirmed, as opposed to sticking with the law, and having the Supreme Court change it.

Finally, as to law review articles. No, they aren't peer reviewed. Rather, most of the review they get is by 3L law review editors. I don't know anywhere else in academia where the students control what is published.

But then, I am not sure whether peer review would work. Much of what is published in law reviews is controversial, and, arguably, somewhat political. And, there is a general liberal bias to law schools, as there is to much of academia today. So, I would think that peer review would slant law reviews even more to the left than they are now. (At least, there is that possibility).

Oh, and I don't see why law profs should be above it all when blogging. In class, yes. But, like judges, they have real lives and real opinions too. But unlike judges, there is no ethical or legal duty to carry this impartiality into the rest of their lives.