Judge Alito had been in the
office for several years when I arrived. His reputation among
the other career lawyers was that he was reliable, meticulous,
objective, hard-working, a fine writer and an effective oral
advocate. (Assistants would generally argue two of three cases
a year before the Supreme Court. ) Alito was assigned a
particularly difficult case, FCC v. League of Women Voters, on a
weekend’s notice because of the sudden unavailability of the
deputy who was to argue it. The high quality of his performance
was a legend in the office. It was important for me as
principal deputy and then head of the office to learn the
reputation of those on my staff. Alito was highly respected. Nor
do I recall anyone bothering to mention that he had any
particular political coloration. In preparation for this
testimony I have checked my recollection with several alumni of
the office from that time and they confirm what I report here.
There has been considerable
attention in the press and elsewhere to two memoranda he wrote
while he was an assistant in the office: one in the Thornburgh
case dealing with various state regulation s of abortion
providers, and Mitchell v. Forsyth, dealing with the Attorney
General’s personal liability for wiretaps found to violate the
Constitution. It is important to place these memos in their
context. The Solicitor General does not bring a case to the
Supreme Court unless some other part of the government-whether
a division of the Department of Justice or another agency
recommends it. In both these cases, Assistant Attorneys
General, presidential appointees, and members of the Attorney
General’s staff had written formal recommendations that the
Solicitor General argue to the Supreme Court: in one that Roe
v. Wade be overruled, in the other that the Attorney General be
held to be absolutely immune from personal suits for his
official actions. In those cases, as in every case coming to
the Solicitor General, an assistant is assigned the job of
analyzing the case and recommending to the Solicitor General a
course of action. It fell to Alito to write those memos.
In both cases Alito recommended
against taking the position that more senior, politically
appointed officials were urging the Solicitor General to take
before the Court. In the abortion case, not only the head of
the Civil Division but other high and politically highly
connected officials were urging that I, as the head of the
office at the time, ask the Court to overrule Roe v. Wade. The
bottom line of Alito’s memo was that I should not do that.
Alito did preface that ultimate conclusion by saying that the
decisions in the courts below were highly irregular on
technical, procedural grounds (a position with which Justice
O’Connor in dissent agreed) and that Roe might well be
modified--as it has been--in some modest ways over the years.
Indeed, the 1992 Casey decision did authorize a number of
regulations that the Court found did not impose an “undue
burden” on a woman’s right to choose to have an abortion.
It is also worth noting that my
predecessor, Rex Lee, had been criticized within the
Administration for not opposing Roe head on, even though it was
a more-or-less official position in the Department that the case
had been wrongly decided. Alito’s memo may reasonably be taken
to express the belief that Roe had been wrongly decided. At the
time that was hardly a radical position or outside the
mainstream. In the same year that Alito wrote his memo
Archibald Cox had repeated his published view that Roe had been
wrongly decided. This was also the position of Professor Paul
Freund of Harvard and Dean Ely of the Stanford Law School.
One of the criticisms of Lee was
that he was too ready to follow the advice of career lawyers on
his staff who were hostile to the Reagan Administration
agenda-especially on Roe-and used technical or tactical
arguments to undermine it. It is hardly surprising, then, that
Alito took pains to deny any personal hostility to the project
he was recommending should once again be postponed. His making
that point in the memo would have made my life easier vis-a-vis
other senior members of the Department had I taken his advice.
In the event, I did not follow Alito’s advice and did ask that
Roe be reconsidered and overruled, because I thought the
Administration had the right to have its position put before the
Court in a forthright but professionally correct way. Alito in
his memo correctly predicted that the Court would react with
hostility to such an argument. (My recent reading of the
Blackmun papers in the Library of Congress showed me just how
hostile that reaction had been.) When it came time to write the
brief, I collaborated with Albert Lauber. Lauber wrote the part
of the brief dealing with the technical failings in the
decisions below and I wrote the part asking the Roe be
overruled. It would have been normal for Alito to discuss the
brief with Lauber. In our small, collegial office it was normal
for the author of the underlying memo to look over the shoulder
of the brief writer.
Alito’s memo regarding the
immunity of the Attorney General from personal liability where a
wiretap he authorized is later found to have been illegal was if
anything an even clearer example of a career lawyer doing his
job correctly and dispassionately. (It should be emphasized that
the case had nothing to do with the Attorney General’s authority
to allow such a wiretap. It was the premise of the case that
the eavesdropping was illegal.) The Solicitor General in that
case represented not only the Department of Justice but the
Attorney General personally, whom the court below had ruled must
pay damages out of his own pocket for ordering a wiretap found
to be illegal. It is not surprising that the office of the
Attorney General had asked the Solicitor General (at that time,
Rex Lee) to urge his absolute immunity from personal liability
in such a suit. Unlike the wiretap controversy today, the
argument was not that a wiretap was constitutional just because
the Attorney General had authorized it. Once again it was
Alito’s job to analyze and recommend and he recommended that the
Solicitor General not even ask the Supreme Court to recognize
such absolute immunity. It is hardly surprising that Alito,
like many lawyers delivering bad news to a client, expressed
sympathy for the client’s position. But the bottom line was just
what Alito’s higher-ups did not want to hear. And here too the
Solicitor General did not take Alito’s advice and once again
Alito was proven right. (I believe the position that the
Attorney was not personally, but only institutionally liable in
such cases had been taken in the Carter Justice Department as
well.)
I also remember working closely
with Alito on the amicus brief in Wygant v. Jackson Board of
Education, in which we argued that a school board may not fire a
white teacher with greater seniority in order to maintain a
particular ratio of minority teachers to minority teachers. It
was our position that Justice Powell’s controlling opinion in
the Bakke case established the principle that a government
agency’s imposing a disadvantage on a person solely because of
that person’s race, while not categorically forbidden, had to
survive what in constitutional law is called strict scrutiny.
That position has since been reaffirmed many times, most notably
in opinions written by Justice O’Connor in the Croson and
Adarand cases. In the Wygant case the Court agreed with our
position. Justice White, in a concurring opinion wrote:
This policy requires laying off nonminority teachers solely on
the basis of their race, including teachers with seniority, and
retaining other teachers solely because they are black, even
though some of them are in probationary status. None of the
interests asserted by the Board, singly or together, justify
this racially discriminatory layoff policy and save it from the
strictures of the Equal protection Clause.
I mention this case because
I know that there has been some attention paid to Judge Alito’s
application for the position of Deputy in the Office of Legal
Counsel—a document of which I knew nothing until its disclosure
in connection with these proceedings—in which he writes that he
is proud of his contribution to cases in which the “Department
has argued in the Supreme Court that racial and ethnic quotas
should not be allowed . . .” I think very few judges,
legislators or lawyers of whatever persuasion defend racial
quotas. Certainly the Supreme Court has consistently condemned
them. In the recent Michigan affirmative action cases, Grutter
and Gratz, the reason that the University Michigan Law School’s
affirmative action program passed muster (Grutter) and the
undergraduate program (Gratz) was struck down by a 6-3 vote was
that the former did not involve a quota and the latter did. In
this instance Judge Alito’s views are not only in the mainstream
but in the very middle of the current. Indeed it is anyone who
would defend quotas who is out of the mainstream.
Finally, although I have not
made a study of Judge Alito’s opinions while a Judge on the
Third Circuit, I will comment on two of them, because others
have. In Doe v. Groody Judge Alito dissented from an opinion
holding that a search of a woman and her young daughter violated
the Fourth Amendment. This opinion has been dramatized and
caricatured as a display of cruel insensitivity to the dignity
of the subjects of the search. An actual reading of the case
shows what a mischaracterization that is. The search is
described as a “strip search.” In that case, after an extensive
investigation, state narcotics agents executing a warrant to
search premises for amphetamines found the wife and daughter of
the owner of the house present in the house at the time and
directed a female officer to search them for the illegal drugs.
Here is a description of that search from the majority opinion.
...the female officer removed Jane and Mary Doe to an upstairs
bathroom. They were instructed to empty their pockets and lift
their shirts. The female officer patted their pockets. She then
told Jane and Mary Doe to drop their pants and turn around. No
contraband was found. With the search completed, both Jane and
Mary were returned to the ground floor . . .
The only issue in the case
was whether the search warrant was broad enough to allow a
search of persons on the premises other than the designated
owner. The only point that divided the majority and Judge Alito
in dissent was whether the words in the sworn affidavit
requesting the warrant which did specifically request permission
to search any person on the premises carried over to the more
general words in the warrant itself. Had the warrant tracked the
affidavit there would have been no issue at all about the
legality of the search. This case seems to me no more momentous
than Judge Roberts’s (as he then was) decision declining to find
unconstitutional the arrest of a young girl caught eating a
french fried potato in a Washington subway station.
The other dissenting opinion
which has attracted some comment is the one in which Judge Alito
concluded that the Supreme Court’s then recent decision in the
Lopez case, invalidating the federal Gun Free School Zone Act
cast a constitutional shadow on the federal machine gun
statute, when there is no requirement of an allegation that the
gun had been acquired or traveled in interstate commerce. This
case seems to me very similar to Judge Roberts’s opinion
expressing doubt about the constitutionality of the Endangered
Species Act as applied to a “hapless” Arroyo toad. In both
cases the judges had to guess about the exact scope of the
Supreme Court’s rather sweeping but cryptic language in Lopez.
Some critics see in Judge Alito’s guess in the machine gun case
an ominous hostility to national power; that is distinctly odd,
as the same critics fault Judge Alito for being too expansive in
his views of national power, especially in respect to law
enforcement. And in general, it is implausible to imagine that a
former United States Attorney from New Jersey would harbor some
predilection for restricting the government’s power to prosecute
offenses involving the gangsters’ weapon of choice. No, he was
just conscientiously doing his job, which is to apply “without
fear or favor” the law as set down by the Supreme Court. And
that is the hallmark of his work throughout his legal career.
Everything I have
heard or read about Judge Alito confirms my initial experience
and that of my colleagues in the Office of the Solicitor
General, that Alito is a modest man, scrupulous in his treatment
of the law, respectful of precedent, and supremely capable of
expressing his conclusions in straightforward, understandable
terms. He is, no doubt, a man of conservative disposition. But
he is no doctrinaire. Nowhere is there a whiff that he is in the
grips of some theory, originalism or any other. He is a man
before whom I or any other lawyer should be entirely easy to
present a case, confident that he will give a fair hearing. His
opinions will add to the predictability, stability and clarity
of the law. I hope he will be confirmed.
