• U.S.

The Cool Fervor of Judge Alito

13 minute read
Perry Bacon Jr. and Mike Allen/Washington

Sam Alito wanted a bigger job, but he had a problem. The 35-year-old graduate of Princeton and Yale was working at the Justice Department in 1985 at the height of conservative euphoria over the re-election of Ronald Reagan. But he was not part of what was known as the “secret handshake” crowd—the Administration’s tight-knit cadre of Reaganite true believers. He had been one of the young lawyers from élite schools hired without regard to their political leanings by the Solicitor General’s office. The Reaganauts suspected many of the career lawyers were liberals hoping to block Reagan’s ideas. Worse, Alito had not even worked on the President’s campaign or donated money, two tests of loyalty for high-level posts in any Administration.

Still, some at Justice got the impression through informal conversations that Alito was more conservative than he let on, although he rarely talked directly about politics. And they admired his approach to the law. In a department in which even some Reagan disciples were worried that colleagues focused too much on ideology rather than legal reasoning to back their claims, Alito diligently researched every issue, wrote clearly and avoided ideological traps. “I was just very impressed by the disciplined nature of his mind,” says Chuck Cooper, a Justice Department official at the time. “He could view a legal issue as objectively and as neutrally as anyone I have ever met.”

So when Cooper was named to head the department’s Office of Legal Counsel, he immediately thought of Alito to be one of his deputies. The office functions almost as a law firm within the Executive Branch, offering legal advice on the various ideas coming from other presidential aides—the perfect post for a man who focused more on the fine points of jurisprudence than on politics. This was a chance for a big step up. The question was, Could he be trusted?

Alito was given a test. As part of applying for the job, he was asked to write an essay attesting to his ideological credentials. “I am and always have been a conservative,” he wrote in uncharacteristically bald prose. With those eight words, along with a note that he was “particularly proud” of memos he had written suggesting limits to affirmative action and abortion rights, Alito sealed the promotion.

He also set the stage for a high-stakes political battle when George W. Bush named him to the Supreme Court two decades later. As Alito’s confirmation hearings kick off on national television this week, Senators and viewers will be asking, Is this the man of the memos, whose paper trail includes provocative passages against abortion and in favor of Executive power that have given Democrats and liberal interest groups the ammunition to portray him as a dangerous activist? Or would the high court be getting the more opaque and reserved scholar described by friends and co-workers and suggested by some of his later work?

His answer to that essay test suggests a paradox that may play out on Capitol Hill as the Judiciary Committee opens hearings for a Supreme Court nominee for the second time in five months—after nearly a dozen years with none at all. Supporters and former clerks affectionately describe Alito as nerdy—more academic but also less polished than John Roberts, who addressed the committee without notes on his way to confirmation in September as Chief Justice. Yet Administration officials say they are certain that Alito will attract fewer votes—in the committee and later in the Senate—than did Roberts, whose golden résumé and limited paper trail thwarted Democrats’ putative attack plans. Party leaders say they are determined not to give Bush’s new nominee as easy a time. Alito would replace Sandra Day O’Connor, whose views have often decided key issues like affirmative action, late-term abortion and death-penalty cases in ways that Democrats have supported. They fear Alito’s won’t.

That political dynamic has left the nominee’s longtime friends and colleagues scratching their heads; the Alito they are reading about bears little resemblance to the conservative yet cautious man they know. “He’s careful, he’s methodical, he’s no maverick or extremist,” says Susan L. Sullivan, a legal consultant in San Francisco and self-described liberal Democrat who clerked for Alito in 1990 and ’91. Sullivan thinks opponents are “cherry-picking decisions.” But that is standard procedure for any confirmation fight. And Lawrence Lustberg, a New Jersey defense lawyer who has known Alito for decades and likes him personally, says the nominee would certainly move the court to the right on a wide range of issues. Mark Tushnet, a constitutional-law professor at Georgetown University, says he takes his cues from the enthusiasm of Alito’s conservative supporters, and if he’s not one of them, they have been “hoodwinked.” Says Tushnet. “Roberts is smoother. Alito is more rough-edged, and you can see the conservatism more clearly.”

Legal scholars on both sides suggest that the most telling stretch of his biography is the quick run from 1985 to ’90, beginning when he took the Office of Legal Counsel job and ending with his elevation to his current post on the circuit court. Colleagues say he was admired for collegiality. When two of his young aides had to finish a memo for the next day, he stayed with them past midnight and went to the law library to fact-check the memo they wrote, a task usually left for much more junior aides. But at his new job at Justice, what his co-workers remember above all is that he lived up to his reputation as focused more on legal reasoning than on political doctrine. “The others were much more open about being part of a revolution,” says Marc Miller, a Democrat who worked in the office and is now a law professor at Emory University. “Sam was the least of that, a good lawyer and soft-spoken.” Alito sometimes frustrated staff members by examining issues from all sides, sending attorneys back to rethink memos if he didn’t think they had explored them all. In one often cited memo he wrote before he entered the legal counsel’s office but that is emblematic of his scholarly approach, Alito argued that the Administration should not press the Supreme Court into throwing out a suit from the Black Panther Party that accused federal officials of conspiring against the group. Disagreeing with the Justice Department, the FBI and the CIA, he said none of the legal issues in the case—such as questioning a lower court’s ruling that said it was important that the Black Panthers be allowed to keep their membership list private—merited Supreme Court review and the department should try to win the case in lower courts.

Part of the job of the Office of Legal Counsel is to protect the authority of the President. And in that department, Alito seemed to support expanding the power of the presidency in ways that worry congressional Democrats today. He was part of the Litigation Strategy Working Group, a team of about a dozen officials that Attorney General Edwin Meese appointed to help embed Reagan’s philosophy more deeply into the legal system. In a 1986 memo to the group, Alito proposed to have Reagan issue “signing statements,” defining exactly how the President understood a law’s meaning, when he approved a bill that Congress had passed. Reagan issued such statements occasionally, but the Bush Administration has dramatically expanded their use. In one issued two weeks ago, which infuriated both Democrats and Republicans, Bush suggested he would reconsider a recently passed torture ban if he felt there was an imminent national-security threat.

Thriving at work, Alito was enduring a personal crisis, the declining health of his father, which gave his colleagues a window into a relationship that had shaped the often shy, private man. Samuel Alito Sr. had worked more than 30 years for the New Jersey state government, mainly in the office of legislative services, which is in charge of conducting research and writing legislation for state lawmakers. Alito’s dad, who had occasionally let his son come to see his work at the statehouse, was widely admired for his nonpartisan approach. Although people knew he was a Republican, both parties trusted his judgment, putting him in charge of a redistricting project in the 1960s. He was also known for being strict, firing employees who violated the rules of the apolitical office by expressing their views of pending legislation. And like his son, he was a stickler for careful writing, sharply criticizing any material his staff members wrote that had grammatical errors.

The father’s health quickly worsened after his retirement in 1984. The young Alito was very close to his parents and his sister Rosemary and headed back to their New Jersey home as often as he could. But his job frequently kept him in Washington, and the situation left him talking to his colleagues about the influence his father had on him. “He would recount the strenuous efforts his father made to undertake redistricting in a methodical, precise way,” says Doug Kmiec, a law professor at Pepperdine University who worked with Alito. “His father gave him a model for how to deal with people in a fair and evenhanded way.” Alito Sr. died in 1987 of a heart problem, and dozens who were involved in New Jersey politics attended his wake.

By that time, Alito had found a new job. When the U.S. Attorney’s post in Newark, N.J., opened up in ’87, Alito wasn’t an obvious candidate. U.S. Attorneys, the top federal prosecutors in each state, are often swashbuckling, charismatic figures who are aiming to head into politics. In his Justice Department job, Alito worked on highly technical legal questions, seldom held press conferences and rarely showed up in a courtroom. Alito saw the job as a chance to move back near where he grew up and be closer to his family, and he had a novel spin on his dearth of qualifications: he told a colleague the position would give him a “remedial education”—a chance to get more trial experience and focus on less specialized issues than the ones in his work in Washington. Friends saw the stirrings of a politician, someone who could size himself up against the competition. Alito told them that a rival candidate had shown a lack of conviction by giving money to both political parties.

With the endorsement of Attorney General Meese, under whom Alito had worked in Washington, as well as the support of several New Jersey Republican officials who had long admired his father, Alito landed the U.S. Attorney job in early ’87. He moved quickly to make the office less hierarchical. He instituted an open-door policy that allowed defense lawyers to come in and meet to discuss cases with him personally rather than with one of his aides. He met individually with more than 70 of the attorneys in his office to get their input when he first arrived there. And at news conferences at which indictments were announced, Alito made sure to introduce his deputies and let them answer questions, so they could appear in front of the cameras and get credit for the office’s work as well.

One of his first moves may have been his best. Realizing he didn’t have much experience as a prosecutor, he brought in one of Southern New York U.S. Attorney Rudolph Giuliani’s stars from across the river, Michael Chertoff, to serve as his top deputy. Together they decided to shift the office’s priorities, going after fewer small drug deals and focusing more on public corruption and Mob cases. “We both agreed we should avoid a lot of rinky-dink cases,” Chertoff, who is now the U.S. Homeland Security Secretary, told TIME. The result was that Alito prosecuted far fewer drug cases than his predecessor had but also won some major cases, including several convictions of members of the Genovese crime family who had sought to kill Gambino Mob boss John Gotti.

Democrats looking at Alito today are worried that his tenure as a prosecutor has affected his track record as an appeals court judge, a position in which he has overwhelmingly favored police and the government in criminal cases. He defended the strip search of a 10-year-old girl, saying drug dealers sometimes use children to help with their crimes. He ruled that evidence obtained by the FBI while monitoring a suspect for several months in his hotel suite without a warrant was permissible because police turned on video cameras only when an informant who was cooperating with officers entered the suspect’s hotel room. In an opinion later overturned by the Supreme Court, he upheld a man’s death sentence—even though his lawyers had failed to present evidence that he was abused as a child and had limited mental capacity—saying the defendant was demanding that his defense attorneys be more resourceful than the Constitution requires.

After Alito’s three years as U.S. Attorney, President George H.W. Bush tapped him to be an appeals court judge in Newark, a position he has held for 15 years. When Alito was first nominated, it was expected that Democrats would attack him for his opinions as a judge, particularly a 1991 dissenting opinion in which he defended a Pennsylvania law that said a woman must notify her husband before she has an abortion. Democrats also seized on Alito’s record of ruling against employees who allege gender or racial discrimination. They were alarmed too by the 1985 Justice Department application and wondered why Alito said he was opposed to Supreme Court decisions in the 1960s promoting reapportionment, which was designed to ensure fairer representation of urban minorities.

But following revelations that Bush has allowed the secret surveillance of Americans without warrants, Democrats have shifted their concern to Alito’s robust defense of Executive power. In a 2000 speech, for instance, Alito argued that the framers viewed the Executive Branch of government “as necessary to balance the huge power of the legislature and the factions that may gain control over it.” Massachusetts Senator Ted Kennedy has said he would question Alito about a 1984 memo in which he argued the Attorney General should be immune from lawsuits even if he authorized illegal domestic wiretapping.

Many Democrats say that while Alito may be mild mannered, his views reflect a conservative activist befitting the “Scalito” moniker that liberals have given him in order to tie him to Supreme Court firebrand Antonin Scalia. White House aides want Alito prepared for a barrage of hostile queries, so he continued last week with practice sessions in a Justice Department conference room and a White House auditorium. Former Solicitor General Ted Olson stopped in to fire questions aimed at sharpening the nominee for surprises. White House officials believe Alito’s understatement will play well in such a heated atmosphere. Asked how the Administration plans to handle the theatrics of the hearings, a White House official replied tartly, “Maybe we’ll put a cape on him.” That might be appropriate dress, because like a superhero, Alito almost seems to have two separate identities. To pass his next job interview, he will have to convince enough Senators that at least one of those two Alitos belongs on the Supreme Court.

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