Yet, political loyalties became irrelevant when I
took up my commission as a federal judge. The same has been true
in the case of Judge Alito, who served honorably in two
Republican administrations before he was appointed to our Court.
Judicial independence is simply incompatible with political
loyalties, and Judge Alito’s judicial record on our Court bears
witness to this fundamental truth.
I have been a judge for 45 of my 86 years.
Based on my experience, I can represent Judge Alito is among the
first rank of the 44 judges with whom I have served on the Third
Circuit, . . . and including another 50 judges on five other
Courts of Appeals on which I have sat since taking senior
status.
Moreover, I have been a long-time student of
the judicial process. I have written four books and more than 30
law review articles on the subject. This study required me to
study the current work of 22 justices on the U.S. Supreme Court.
I have read hundreds of opinions of appellate judges of every
federal circuit, every state and every political stripe.
The great Cardozo taught us long ago: "The
judge even when he is free, is not wholly free. He is not to
innovate at pleasure." This means that the crucial values of
predictability, reliance and fundamental fairness should be
honored.
As his judicial record makes plain, Judge
Alito has taken this teaching to heart. He believes that legal
outcomes will follow the law as dictated by the facts of the
particular case, whether the facts involve commercial interests,
governmental regulation, or intimate relationships.
According to these criteria, Judge Alito is
already a great judge. We who have heard his probing questions
during oral arguments, of being privy to his wise and insightful
comments in our private conferences. We who have observed at
first hand his impartial approach to decision-making and his
thoughtful judicial temperament and know his carefully crafted
opinions. We who are his colleagues are convinced that he will
also be a great Justice.
If Judge Alito is confirmed, as I believe he
deserves to be, he will succeed a Justice who has gained a
reputation as a “practical” Justice whose resistance to
ideologically-driven solutions has positioned her as a “swing”
vote on the Court. Justice O’Connor has described her approach
to judging in this way:
Much emphasis in the statements and testimony
at this hearing has highlighted decisions of Justice O’Connor,
but not a word has described her view of the judicial process. I
turn to that now. Justice O’Connor explains her approach to
judging :
“It cannot be too often stated that the
greatest threats to our constitutional freedoms come in times of
crisis. . . The only way for judges to mediate these conflicting
impulses is to do what they should do anyway: stay close to the
record in each case that appears before them, and make their
judgments based on that alone.”
Knowing Sam Alito as I do, I am struck by how
accurately these words also describe the way in which he has
performed his work as a federal appellate judge. It is why, with
utmost enthusiasm, I recommend that he be confirmed as a an
Associate Justice on the Supreme Court.
