First: Temperament. Sam Alito is a
wonderful human being. He is gentle, considerate, unfailingly
polite, decent, kind, patient, and generous. He is modest and
self-effacing. He shuns praise. When he
had completed his tenth year of service on our Court Sam
declined my offer, extended as Chief Judge, to arrange the usual
party to observe ten-year anniversaries. Sam was uncomfortable
at the prospect of encomiums to his service. Sam has never
succumbed to the lure of big city lights. He has a sense of
place, which, for him, is not nearby New York City but New
Jersey, which has always been home. Finally, there is an aspect
of appellate judging that no one gets to see but the judges
themselves – how they behave in conference after oral argument,
at which point the case is decided. In hundreds of conferences,
I have never once heard Sam raise his voice, express anger or
sarcasm, or try to proselytize. Rather he expresses his views in
measured and temperate tones.
Second: Integrity. Sam Alito is the soul of
honor. I have never seen a chink in the armor of his integrity,
which I view as total. That opinion is not undermined by the
furor over the Vanguard issue, by which I remain baffled. My
wife holds Vanguard mutual fund shares, which I report on my
Financial Disclosure Form. However, I do not identify Vanguard
on my recusal list because I am satisfied that my wife possesses
no ownership in Vanguard, or more specifically in the Vanguard
Management Company, which is what is germane to the recusal
determination. She has never received a proxy statement, an
opportunity to vote for directors, or any indicia of ownership
other than her aliquot share in the fund to the extent of her
investment. I believe that Judge Alito was not required to
recuse himself in a suit against Vanguard (in which he had no
imaginable interest).
That view is corroborated by the learned
opinion of Dean Rotunda, which is, I understand, a part of the
record..
Third: Intellect. Sam Alito’s intellect is of
a very high order. He is brilliant. He is highly analytical, and
meticulous and careful in his comments and his written work. He
is a wonderful partner in dialogue. He will think of things that
his colleagues have missed. He is not doctrinaire, but rather is
open to differing views and will often change his mind in light
of the views of a colleague. Contrary to some reports, Sam does
not dissent often. According to our Court statistics, in the
last six years he has dissented only sixteen times, or in a
little over two cases per year, fewer times than a number of his
colleagues. I am a devotee of the Supreme Court. I have known
almost all of its present and recent members extremely well, and
am therefore familiar with their enormous intellects. I believe
that Sam Alito measures up to them and that, if confirmed, he
will be a strong and independent Justice – his “own man” as it
were. Finally, Sam’s intellect is not abstract but practical. He
does not mistake the obscure for the profound.
Fourth: Approach to the Law. As I address this
topic I am acutely aware of the deep concern of members of the
Committee about this subject. I am also aware that my role here
is to testify more to fact than opinion, and hence I will not
express either normative or predictive judgments. The Sam Alito
that I have sat with for fifteen years is not an ideologue. He
is not a movement person. He is a real judge, deciding each case
on the facts and the law, not on his personal views whatever
they may be. He scrupulously adheres to precedent. I have never
seem Sam exhibit bias against any class of litigation or
litigants. He was a career prosecutor, but in numerous criminal
cases on which we have sat together, if the evidence was
insufficient or the search was flawed, he would vote to overturn
the conviction. And if the record did not support summary
judgment against the plaintiff in an employment discrimination
or civil rights case, he would vote to reverse. In their words,
Sam’s credo is fairness – what is fair.
Sam is said to have certain ideological views,
expressed in some twenty-year-old memos. Whatever these views
may have been, his judging does not reflect them. The public
does not understand what happens when you become a judge. When
you take the judicial oath, you become a different person. You
decide cases not to reach the result you would like, but based
on what the facts and law command. Moreover, what you decide as
a judge are not general principles, but the case in front of
you. You do it as narrowly as possible – that’s what Sam Alito
does, always with great respect for precedent. Sam is faithful
to his judicial oath.
Why then, you ask, don’t we all decide cases
the same way, since we are looking at the same record and the
same precedent? There are several answers. First, we are all
human beings. Even husbands and wives will look at the same data
and see things differently. Second, if I may explode what has
become the conventional wisdom, judges do make law – that’s what
we have been doing in our Anglo-American legal system for
hundreds of years. The facts do not always fit existing
precedent, and the judge has to apply the precedent to new facts
and thereby make new law. Different human beings will do this
differently.
So much for background; what of Sam Alito? The
best calipers that I could find to measure Sam’s approach to the
law was to compare it with my own. I have been a federal judge
for over thirty-five years. My opinions would fill many
bookshelves, but I think that I am fairly viewed as a mainstream
or centrist judge. A computer survey run by our Court librarian
retrieved 1,050 opinions in cases on which Sam Alito and I have
sat together. In these cases we disagreed 27 times, which is
probably about the same number of times that I would have
disagreed with most other colleagues. Some cases turned on our
reading of the record, others on how rigorously or flexibly we
interpreted the reach of a statutory or constitutional provision
or a state court’s jurisprudence or applied our usually
deferential standard of review. But in every case on which we
differed, Sam’s position was closely reasoned and supportable,
either by the record or his interpretation of the law, or both.
Sam and I saw some cases differently, but we saw over 97% of
them the same. To me, this rough survey debunks the notion that
Sam Alito is a doctrinaire or ideological judge.
The short of it, members of the Committee, is
that Sam Alito is a superb judge in terms of temperament,
integrity and intellect. And he has exhibited a careful,
temperate, case-by-case approach to the law.
I thank you for this opportunity to address
you.
