The Samuel Alito Nomination -- Twenty Years Later

As of this past Saturday, Associate Justice Samuel Alito has been on the Supreme Court for twenty years. He joined the Court on January 31, 2006.

On October 31, 2005, President George W. Bush nominated then-Judge Samuel Alito to replace Justice Sandra Day O’Connor after the withdrawal of White House Counsel Harriet Miers’ nomination. The next day, I had this op-ed in the Wall Street Journal profiling the nominee.

Judge Alito is a supremely qualified nominee who should (though he may not) win a quick and easy confirmation. Some Senate Democrats will find reasons to oppose him, but he once held their support. He was confirmed unanimously by a Democratic Senate in 1990 only two months after he was first nominated by George H.W. Bush.

There being no question about Judge Alito’s accomplishments and credentials, the debate over this nomination will focus squarely on his jurisprudence. Already at least one Democratic aide reportedly called Judge Alito a “right-wing wacko.” Such epithets grossly distort his record. He is not a dogmatic conservative; his record shows a man more interested in getting the law right and faithfully applying applicable precedents than scoring rhetorical points or advancing an ideological agenda. As he commented in an interview earlier this year, “Judges should be judges. They shouldn’t be legislators, they shouldn’t be administrators.”

Judge Alito is most often compared to Antonin Scalia. Years ago one journalist even dubbed him “Scalito,” and the name stuck. While the two share an ethnic heritage and a constitutionalist judicial philosophy, it would be easy to overstate the comparison. Judge Alito’s opinions are rarely adorned with zingers or verbal barbs at his colleagues. What he may lack in rhetorical flair, however, he more than makes up for with analytical rigor. Whereas Justice Scalia’s caustic wit and penchant for tweaking his colleagues (particularly Justice O’Connor) might have cost him in building court majorities, Judge Alito’s subtle charm and cooler approach could make him a powerful intellectual force on the court.

I think it is fair to say the Justice Alito has been a more polarizing figure on the Court than I anticipated. Although he initially voted in virtual lockstep with Chief Justice Roberts, their approaches to the law began to diverge after several years on the Court.

After his confirmation hearing, I had a second WSJ op-ed piece discussing the partisan attacks on his nomination and the obsession with results-oriented evaluation of judicial decisions.

Samuel Alito has delivered an impressive performance under interrogation, revealing a humility — and a command of legal matters — well beyond that of his inquisitors. It was clear that many of those questioning him had little interest in the substance of his answers, particularly since he would not tell senators how he would resolve contentious issues that may come before the court. In response, Sen. Joseph Biden suggested in frustration that the Senate scrap confirmation hearings and simply debate the nominee’s decisions as if they were considering legislation. . . .

Viewing judges as life-tenured politicians who get to impose their own policy preferences furthers the downward spiral of judicial politicization. To be sure, judges themselves are not blameless. The Supreme Court’s willingness to inject itself into controversies traditionally resolved by the political branches of government only encourages interest groups to devote resources to shaping the federal bench.

Reversing the trend will be difficult. In today’s political climate, to say that the judiciary should not resolve an issue is itself viewed as taking a side. Ironically, the same senators who worry that Judge Alito shows insufficient respect for the political branches are aghast that he might leave some thorny issues for the elected branches to sort out. In Thursday morning’s questioning, Sen. Russ Feingold could scarcely believe that some aspects of constitutional separation of powers cannot be resolved by the courts.

A majority of Senate Democrats would seek to filibuster Justice Alito, voting against cloture on the nomination. He was confirmed nonetheless, albeit not by a filibuster-proof margin

Twenty years later, the confirmation process has only gotten worse. Confirmation hearings are an even more embarrassing spectacle and it is rare that Senators support nominees from across the aisle.

Justice Alito joined the Court to replace Associate Justice Sandra Day O’Connor, then the “median” justice, but he would not find his place in the middle of the Court. Instead, Justice Alito is often on the right flank, and on some issues may even be the most conservative justice on the Court. In some respects, he is the model of President Obama’s “empathetic judge,” albeit one who shows empathy for quite different groups and constituencies than Obama had in mind. I also expect him to remain on the Court for several more years to come.

For more on Justice Alito’s first twenty years on the Court, check out this essay by Professor Aaron Nielson, a former Alito clerk.

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