JURIST Special Guest Columnist Wendy J. Keefer, former senior counsel and chief of staff in the US Department of Justice Office of Legal Policy and now with Bancroft Associates in Washington DC, says that Judge Samuel Alito's steadfast performance on the fourth day of his Senate hearings and the testimony of other witnesses, including a panel of Third Circuit appeals judges, have only solidified the case for his confirmation to the US Supreme Court ...
First, today's testimony finally revealed a nominee who understands the independence he must protect and who refuses to be bullied into providing answers or statements that would endanger that independence. Perhaps still trying to recover from the prior day's litany of implicit allegations of bigotry, Judge Alito repeatedly explained how he would approach and has approached the judicial decisionmaking process. Though repeatedly asked his views and how he would rule on specific issues, he properly responded each time with a clear method for consideration of issues and legal interpretation.
Second, today's hearings continued the inquiry into CAP Concerned Alumni of Princeton. CAP, an organization to which Alito apparently indicated membership in a 1985 application for a post with the Reagan Administration, took a hostile position toward the admission of minorities and women into Princeton University. Judge Alito's opinions as a Third Circuit judge and his testimony in the hearings have made clear that he certainly harbors no such hostility. Indeed, his only claimed recollection of the organization focused on that group's position on ROTC and had nothing to do with any admissions policy. Most interestingly, some Senators seemed more interested in linking the group's position on admissions at Princeton to a revered and recently deceased President, rather than to the nominee or anything relevant to these hearings.
Third, some Senators again returned to their claim that Judge Alito had broken some sort of promise he made to them in 1990. One Senator expressly stated that "the real shock is Judge Alito failed to take his sworn promise to this committee seriously." Such a statement is extremely troubling. Are we to understand from the statement that nominees are in a position to make, or perhaps could even be required to make, promises to the committee about future actions and decisions? More importantly, does the fixation on broken promises as some sort of measuring stick of the suitability of the nominee for confirmation indicate a belief that any members of the judicial branch owe an allegiance to the committee or the Senate as a result of their confirmation? Let us hope not.
Fourth, in support of an apparently new standard for confirmation to the Supreme Court, several Senators seem to be demanding that the nominee fit the mold of the Justice whose seat he would be occupying if confirmed. Though certainly no mystery that those seeking a more activist Court would prefer the seat of Justice O'Connor not be filled by one who will aim to strictly construe the Constitution, such a requirement that a nominee be similar in philosophy to the person he or she is replacing improperly renders the President's constitutional appointment power of little significance. It is highly unlikely that if it were Justice Scalia and not Justice O'Connor who had decided to step down, these same Senators would be requiring some assurance from the nominee that he fit the mold of that Justice.
Finally, today's hearings took an interesting turn in the form of third party witnesses. Numerous witnesses from former Supreme Court law clerks to members of the American Bar Association committee that evaluated Judge Alito's qualifications and determined him well-qualified for the Supreme Court appeared before the Committee. Certainly, not all witnesses were favorable. But none provided any reason to reject this nominee.
Notably, toward the end of the day we were presented with an entire panel of Judge Alito's colleagues from the Third Circuit. Never before, to my knowledge, has such an esteemed panel of sitting judges come to attest before the committee on the qualifications of a Supreme Court nominee. The reason for this new development is obvious. Whether they agree with his decisions or not, most of them came to vouch for Judge Alito's superb qualifications and deserving nomination. Today's hearings merely solidified that fact. Hopefully confirmation is not far behind.
Wendy J. Keefer is a lawyer with Bancroft Associates in Washington DC. She previously served as Chief of Staff to the Assistant Attorney General in the Office of Legal Policy at the U.S. Department of Justice, where she collaborated with the White House on judicial nominations.