Note: This partial transcript of an almost hour-long edition of Talk of the Nation contains only excerpts. What's been left out? Frankly, most of the rah-rah from commentators on the right, and most of the wailing and gnashing of teeth on the left. What's left is a series of views of Judge Alito's career, temperament, and character which may be useful to those who'd like to make up their own minds about his nomination to the Supreme Court.
Neal Conan: On the Supreme Court, Judge Antonin Scalia, the source of that "Scalito" nickname -- and the "Little Nino" nickname as well -- is known as being frosty and even caustic with his questions. Is Judge Alito the same way?
Kate Coscarelli, Newark Star Ledger legal reporter: Not at all. Not at all. In fact, it's a very, very different reputation. Everything from the sidelines of his son's soccer games to to the courtroom to dealings with lawyers, he is polite, he is gentlemanly -- that the kind of thing you hear people say. I've talked with people who say they have worked with him for years and have not only not heard him raise his voice but never curse! Never pounded his desk in frustration in the way that some other people do. He's not that kind of guy.
Conan: The Third Circuit has the reputation of being one of the more liberal circuits. What is this conservative judge's reputation among his colleagues?
KC: Among his colleagues... I spoke with his colleagues. Maryanne Trump Barry, Judge Garth, Judge Cowen, a number of the judges there. And they all... he clerked for Judge Garth once he was out of law school and Judge Garth likes to joke that that he's "such a quiet guy." The first day he showed up in chambers and he said "hello" and the last day he said "good night" and you pretty much didn't hear anything from him in between times. Everybody says he's a very nice guy. He writes almost all of his opinions, as opposed to doing what some people do, using law clerks. He really enjoys the writing. He really enjoys the research. He compares it to putting together a puzzle.
Conan: Samuel Alito served on the Third Circuit for fifteen years. Timothy Lewis was a judge on that same circuit during seven of those years... How would you describe Sam Alito?
Timothy Lewis: Well, Sam Alito is, first and foremost, a true intellectual. He is, in my view, a very thoughtful, very balanced and very fair judge. I think he is an excellent judge. It was a pleasure for me to have served with him on the Third Circuit for those years. I guess at bottom, and this is the most important quality to me for anyone who puts on the robes, Sam Alito is intellectually honest. I do not recall an instance during the years that we served together -- and even though I came from a very different ideological perspective than Sam -- I do not recall an instance where I felt that Sam was result-oriented in any way or seemed to have any particular agenda. He just is a conservative. He is a conservative by nature, by personality, and certainly by jurisprudence. But he was a pleasure to work with and frankly I'm delighted for him today and I think he will make a fine justice on the Supreme Court although I will say that there will be many instances where Sam and I will not agree.
Conan: There are some who read his opinion in the Planned Parenthood vs. Casey opinion and say they can feel a visceral dislike for abortion.
TL: You know, that is a bit of a reach, I think. I was not on the Court when that matter was decided. Had I been on the Court then I can assure you I would not have voted as Sam did. However, I don't know that one can extrapolate from his view in that case and predict that he will, as some have said, overrule Roe v. Wade or whatever. What I think is that a lot of the folks on the far right whose views I've heard since the nomination was made this morning, are way overstating their case. And I think that the same is true on the far left in terms of the fears about what Sam might do on the Court and so forth. You know, he's just a very careful, very cautious judge who approaches matters from a somewhat conservative perspective. But I don't think there are any predictors there one way or the other as far as Roe v. Wade is concerned.
Conan: One phrase we're going to be hearing a lot when his confirmation hearings begin, same as we heard in the John Roberts confirmation hearings, is stare decisis. Does he feel bound, do you think, by previous decisions of the Supreme Court, decisions that have been affirmed again and again over time, which seem to be part of the bedrock of American law -- and I guess we're going back to that same Roe v. Wade.
TL: I have little doubt, based on the years that I spent sitting next to Judge Alito on the bench during oral argument -- and sitting next to him in chambers after oral argument where literally we would confer and decide the cases -- I have absolutely no doubt that Sam understands and has a very high respect for stare decisis. Let me just tell you a little anecdote that might shed some light on Sam as a judge and why he is so well respected, even by those who don't agree with him, and don't share some of his views. The night before I was sworn in on the Third Circuit Court of Appeals, the late and legendary Judge Leon Higginbotham had me in his chambers. Now Leon Higginbotham, as some of you may not remember or may not know, was a wonderful African-American judge -- I am also an African-American -- who was also a great writer and historian and certainly did not come from what anyone would call a conservative judicial perspective. Judge Higginbotham had me in his chambers and we went down the roster of my colleagues-to-be when I was sworn in the very next day. When we got to Judge Alito, he said, "Now Sam Alito is my kind of conservative." I said, "What do you mean by that, Judge?" and he said, "He does not have an agenda. He does not approach things in any predisposed fashion. He's got a very open mind. He's just a conservative, but he's honest and I love sitting with him and working with him." And I learned what Judge Higginbotham meant during the years that I was privileged to sit on that court and serve with Sam. He simply is an excellent and brilliant jurist who just comes at things from a different perspective from mine. But he earned my respect during those years. I think he'll be just fine on the Court.
Conan: Does he have the demeanor to be a judge, do you think?
TL: There's just no question about that. If anything, he is about as shy and reticent a person as I know. Frankly I was stunned by his delivery this morning at the White House in accepting the nomination because he is so shy personally and his demeanor is pretty much reflected by your earlier commentator who talked about his experience as a law clerk for Judge Garth. He's a person of very few words but when he speaks you can't help but listen very carefully. He is not an in-your-face gavel-pounding person by any stretch of the imagination!
Conan: You obviously followed the civil rights cases very closely. They came up more than occasionally in the Third Circuit. Do you have any concerns about his positions on civil rights?
TL: I would have concerns about any nominee that this president makes on the matter of civil rights. I have deep concerns about this administration's approach to and views on civil rights, of course. That said, I am practical enough to understand that this president is going to appoint a conservative. I think that in appointing Sam Alito he has, based on my experience with Judge Alito, appointed someone who has an open mind and who I do not believe is going to do harm to well-established civil rights that have made this country great. And frankly I think -- you mentioned earlier "bedrock decisions" like stare decisis -- these are now a part of the institution of the Supreme Court and I do believe that he will respect that. I don't expect anything but a conservative justice, but in Sam Alito we have a very fine judge, someone who I think will grow into the position as he sits on the Court in the years to come and I have high hopes that he will continue to show the respect for the established law that he has thus far.
Conan: We're speaking with Judge Timothy Lewis who served on the Third Circuit Court of Appeals with Sam Alito for seven years. Judge Lewis, if I could ask you: you got to watch Judge Alito both under the pressure of live court arguments and also in a more thoughtful vein when he was writing and debating decisions. He's got a test very few of us would relish coming ahead, and that his appearance before the Senate Judiciary Committee. How do you think you'll do?
TL: Oh, I think he'll do well. As I said, he's a man of few words. He's very soft-spoken, even reticent... He's a true intellectual and legal scholar. He's well versed in the Constitution and in the important precedents of the Supreme Court that I think the Committee will want to talk to him about. On the whole, I think that he will do well. This is a person who... I think one of the things I most respect about Sam is that he is not a kind of politico if you will. I expect that, like you saw with Judge Roberts, now Justice Roberts, you will see someone who is simply trying to do the best that he can and to answer questions from a legal-scholarly point of view as opposed to just providing satisfactory answers that might assuage one side or the other. I truly believe that. I think he'll do well but it's going to be very difficult as with anyone.
Conan: Judge Lewis, thanks very much for being with us today. Timothy Lewis, now an attorney with Schnader, Harrison Segal & Lewis, a law firm based in Philadelphia. He's a former judge on the Third Circuit Court of Appeals where he served with Samuel Alito... ...
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Conan: David Corn [Washington editor of The Nation magazine], we have yet to hear from you... Is this different? Is this something where Democrats... are going to be ready to make a fight?
David Corn: [excerpted]... There are people on the left -- and I see some Democratic Senators saying "wait a second!" -- we're losing a Justice, Sandra Day O'Connor, who was in the middle and there is a move here to move the Court to the right. The President did win the election but with 50.8% of the vote at a time when the Court is deciding very important issues, from assisted suicide to presidential elections, whether environmental laws apply or don't apply, and of course abortion and privacy rights. Maybe we're beyond the day when it's just a matter of qualifications. If [people on the right] want to push the Court to the right, it's not just a matter of qualifications, there's an agenda here where the other side has a right to say, "Wait a second! We're going to fight against that! And why? Because we don't believe it's in the interest of the United States to move the Court to the right and to have the decisions come down that way" So what we're looking... is a big fight where perhaps there should be about these key policy issues because the Court is playing this crucial role and it's become sort of the fulcrum for a lot of issues in our society. I assume there are a lot of liberal lobbying groups who are expecting the Democrats to put up a big fight. But they can only really do that if they get forty-one or more Democrats who all agree. So the Democratic half of the Gang of 14 are going to have to come along and join the Democrats to do that and right now I can't make a prediction whether that's going to occur.
David Frum ( former Bush speechwriter; writes a blog for The National Review online; fellow at the American Enterprise Institute): [excerpted] I think one of the things people on the other side of the aisle and ideological spectrum will take away from watching the battle over Harriet Miers is, you know , the Court is not just about policy. It's not just about winning. I think conservatives set a real example here of principle. ...Even if I were assured that Harriet Miers would vote the way I want her to in every single case, I would still be against this nomination. So many conservatives said the same thing because they believe in institutions of the country. They believe in something bigger than getting their way. I hope Democrats will take a look at that and say, The Court is about these enduring things. Samuel Alito is the kind of person who belongs on the Supreme Court when there's a Republican president. I think the exactly parallel is what happened with Stephen Breyer. Republicans wished they would have won the election of 1992. They didn't. They would have wished they had the Senate in 1992. They didn't. So there's a Democratic president and they went out and got the best liberal they could find and I think he's been an ornament to the country. I think that's the way it's going to work on this other side. I don't believe we're going to see a big fight because I think most Democratic Senators -- certainly enough to make a filibuster impossible -- will say, Obviously if we'd won, this is not the person we would have picked. We didn't. They won -- pretty decisively -- and they got the Senate. This guy's a good guy and he's the sort of conservative -- if you're going to have any conservatives on the Supreme Court, he's the kind you want.... I don't think there's going to be a tremendous battle over this nomination.
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Michael Gerhardt (professor of law, University of North Carolina): [excerpted] ...He's also somebody who's got the right kind of judicial record. That's what, I think, has made conservatives so gleeful today is that he was on their short list. His judicial philosophy seems to be strong as well. So he's got both academic and other credentials and a commitment to a particular judicial philosophy. That's why I think Republicans and conservatives right now are very happy; that's why Democrats are skeptical.
Conan: He, if asked himself, will not describe that judicial philosophy. How would you describe it?
MG: I think it's fairly evident from his fifteen years on the Third Circuit... that he's got a thoughtful decision-making pattern. As Judge Lewis suggested, he's not necessarily an ideologue, but he does, time and again, come out with conservative results. And so what I think I would say in describing his judicial philosophy is that it's careful, it tends to be very skeptical of Congressional power, it tends to be very skeptical of individual rights such as the right to have an abortion, and at the same time he's very resistant to broadly interpreting Congressional statutes such as those prohibiting sexual harrassment. ...He's going to be firmly on the far right of the Court. President Bush promised to name someone in the mold of Justice Scalia and Justice Thomas. Judge "Scalito" is likely to join them but he's not likely to be as irrascible and as temperamental as they sometimes might be, as argumentative as they sometimes might be. Instead he'll probably be more careful in how he says things and maybe even prone to decision-making on an incremental, case-by-case basis.
Conan: ...What do Judge Alito's former law clerks tell you about him as a judge?
MG: He's very highly respected. not just by law clerks but by the people with whom he sits. And that's high praise indeed. To be able to sit on a court with people of different opinions and have them all praise your temperament, praise the way you approach decision-making, is about the best compliment a judge can get... His law clerks certainly speak very highly of his intellect, his approach to decision-making, the fact that he approaches cases with an open mind, without people necessarily knowing exactly what he'll do on a case that's in front of him. He'll read through the record carefully, try and make what he regards as the best decision. So the insider account of his performance in the US Court of Appeals for the Third Circuit is generally very positive.
Conan: ...Then it all comes down to his judicial philosophy or some would say his judicial ideology.
MG: I think that's exactly right. This is not going to be a debate about credentials or about temperament. I think he's very solid in both of those. .... Ideology clearly matters to people on the right. It mattered to Democrats on the Roberts nomination... My guess is that will be the focus of the hearings. He will be pressed hard in questioning about ideology. Judicial philosophy will be front and center in those hearings. ... I think President Bush wanted a fight that would vindicate people on the right and their beliefs about the Constitution.