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ND experts offer praise for Alito

Karen Langley | Tuesday, November 8, 2005

In the wake of President Bush’s nomination of appeals court judge Samuel Alito to replace embattled White House counsel Harriet Miers as his candidate for the Supreme Court, Notre Dame legal and political experts praised the new nominee’s qualifications and temperament, saying Alito will almost certainly be approved to the high court.

Notre Dame law professors John Nagle and Richard Garnett have argued cases before Alito, who was nominated Oct. 31 by Bush to fill the seat vacated by Justice Sandra Day O’Connor and will face confirmation hearings starting Jan. 9.

“Alito is tremendously well-qualified,” Nagle said. “It’s hard to imagine anyone with more qualifications. Alito has had more experience serving as a federal judge than perhaps anyone in history before serving on the Supreme Court.”

Alito received high grades at Princeton University and Yale Law School, where he served as editor of the Yale Law Journal. He then clerked for a Federal Court of Appeals judge, a common step taken by talented young lawyers, Garnett said.

Alito went on to work as a federal prosecutor in the Department of Justice.

He was appointed to the Federal Court of Appeals before his 40th birthday.

“It is worth noting that he was unanimously confirmed by both Republicans and Democrats,” Garnett said.

While Garnett and Nagle have studied Alito’s rulings, some of their knowledge of the nominee comes from personal experience.

Garnett argued a church-state case before Alito in the Philadelphia Court of Appeals in 1988.

“[Alito] was very gracious and encouraging,” he said. “I was a young lawyer, and he was very patient.”

Nagle first encountered Alito while representing the U.S. Postal Service in a sovereign immunity dispute with the state of Pennsylvania.

“He’s just a wonderful guy, brilliant and tremendously well respected,” Nagle said.

Alito’s demeanor only increases his potential as a Supreme Court justice, Nagle said.

“He is well-grounded and thoughtful, which is precisely the correct temperament you’d want in a judge, and exactly what you’d want in a Supreme Court justice,” he said.

The methodical manner in which Alito takes on cases has also drawn attention from experts.

“His approach is very careful, technical, not at all flamboyant,” Garnett said. “He’s not shooting from the hip in his opinions.”

This care for precedent and the law causes Alito to refrain from exhibiting a political ideology, Nagle said, noting that more liberal judges agree with the lack of political preference shown by Alito’s rulings.

“You don’t get the impression that he has an agenda he’s trying to use his position to promote,” he said. “He would really bristle at any suggestion that he did [have a political ideology.]”

Garnett said Alito’s record has shown him to be a conservative judge, but hardly an extremist.

“I’d put him with [new Chief Justice John] Roberts, a judicial conservative but well within the mainstream of judicial thinking,” Garnett said.

It is possible to get a sense of how Alito approaches cases from his long record of judicial work, Garnett said.

“He shows judicial modesty,” Garnett said. “You get a sense in the church-state opinions that he takes religious freedom seriously.”

Alito’s record will protect him from some of the criticisms that plagued Miers’ nomination, Garnett said.

“I think the point of contrast … is he has this long record of judicial experience and a long record of dealing with constitutional questions that Ms. Miers did not have,” Garnett said, explaining that Alito’s history is indicative of how he approaches legal questions.

Alito has had much more judicial experience than either Roberts or O’Connor did before their appointments, political science professor Donald Kommers said.

Kommers called Alito’s career on the federal bench “broader and more illustrious” than Roberts’, but said O’Connor had greater political experience before her appointment to the Supreme Court.

“Does prior political experience at the state or federal level add anything to the qualifications of a Supreme Court nominee?” he said. “I expect it does it if helps a justice to temper law’s abstractions with political realism.”

Alito’s views on federalism are similar to those of Roberts and the late former Chief Justice William Rehnquist, Garnett said.

“Justice Alito would believe there are limits on federal power,” he said.

There was no dispute among Nagle, Garnett and Kommers about Alito’s chances for confirmation, as all three predicted that he would soon be a Supreme Court justice.

“Alito will be approved, but only after unfair and aggressive questioning by the Senate Judiciary Committee,” Kommers said. “In my judgment, the Senate should not permit interest groups to testify on nominees.”

These interest groups threaten senators’ independence in selecting judges and push senators to make judicial candidates commit to positions on constitutional issues that interfere with their own independence, Kommers said.

Though Garnett is certain Alito will be approved, he too voiced concern about the role of interest groups in the confirmation process.

“There could be a messy fight because interest groups on both sides will use the fight as a way to make money through overheated rhetoric,” he said. “There may be more ‘no’ votes than Chief Justice Roberts had, but [Alito] will still be confirmed.”