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Alito Confirmation Battle Shapes Up

Erwin Chemerinsky
Professor, Duke University Law School
Wednesday, November 2, 2005 2:00 PM

Erwin Chemerinsky, professor at Duke University Law School and commentator on the Supreme Court, was online Wednesday, Nov. 2, at 2 p.m. ET to discus the upcoming confirmation battle for nominee Samuel A. Alito, Jr.

The transcript follows.

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Annandale, Va.: In light of Nixon's historic tenure as statesman, and the fact that he did extract us from Vietnam and make several economic successes during his tenure. Has Duke seen fit to put his portrait back up in the law library?

Erwin Chemerinsky: I don't know anything about the Nixon portrait. Sorry.

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Albany, N.Y.: Do you get the feeling that the battle lines are hardening and that the Dems still have a shot to block this with the help of a few moderate Republicans. It just seems that many people feel uneasy about the possibility of abortions being outlawed again.

Erwin Chemerinsky: I think that it is far too soon to know what will happen with the Alito nomination. Will moderate Republicans oppose him, especially because of his likely being a vote against abortion rights? Will moderate Democrats join a filibuster to stop Alito? If so, would moderate Republicans vote to eliminate the filibuster? It's just too soon to know.

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Washington, D.C.: The history of the United States is a history where minorities have had to fight for rights and liberties. This would suggest that the Court is most important as a defender or not of individual liberty. The press makes it sound like all that matters, however, is whether a nominee is intellectually brilliant and a "nice guy" as witnessed by ex-law clerks and friends. Would I be wrong is concluding that the so-called "moderate" senators from both sides of the isle should line up against Alito if they care a whit about the Constitution as a shield and source of liberty for people? Isn't the conservative agenda of judges like Alito in reality to lock down and shrink individual rights, making them subject to the arbitrary decisions of state legislatures?

Erwin Chemerinsky: I think that the Court's most important role is in protecting minorities who are not protected by the majoritarian political process. This includes racial minorities, political minorities, religious minorities, and other groups that cannot rely on the political process to protect their rights. To me, what is so troubling about Justices like Scalia and Thomas is their insensitivity to this key role of the courts. Having read literally dozens of opinions by Alito in the last few days, I see this same insensitivity in his opinions.

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Detroit, Mich.: Mr. Chemerinsky -- Justice Souter has been quoted as fearing the Court's reputation has been tainted by the fiasco of the Bush/Gore Florida intervention. Since political persuasions obviously play such a key role in Alito's appointment, doesn't this also contravene the ideal of an objective jurist? Consider, Justice Thomas for example. Most people in the legal profession consider him to be eminently unfit for the court, and indeed his appointment in replacement of Thurgood Marshall's legacy is to this day seen as a stinging insult by most African-Americans: his appointment was purely political and his voting record affirms this.

Erwin Chemerinsky: I don't believe that there is such a thing as an objective jurist. Justices inevitably have discretion and must make choices in interpreting the Constitution. In the affirmative action cases, the Court had to decide whether diversity in the classroom is a compelling government interest. There is no objective answer to that question. I argued a case in the Supreme Court a few years ago involving a man who received a sentence of 50 years to life for stealing $153 worth of videotapes under California's three strikes law. The issue was whether this sentence was grossly disproportionate and cruel and unusual punishment. There is no objective answer. Justices must make choices and that's why their views, their values, their ideologies matter so much.

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New York, N.Y.: Good afternoon Erwin,

It's a settled fact in the "public arena" that Miers's nomination was withdrawn because of pressure from the far-right. How will Senate Democrats be able to use this issue in the confirmation process (i.e. will it strengthen a potential filibuster)? Also, by actively advertising Miers's religion and views on abortion to mollify the conservatives, to what extent has Bush exposed Alito's own religious views/abortion views as legitimate matters for debate?

Erwin Chemerinsky: I think it is crucial for the Democrats to emphasize that it was the far-right that defeated Harriet Miers by forcing her to withdraw and that President Bush selected a nominee to please Miers' far-right critics. Bush could have selected a moderate Republican who would have sailed through. But he choose instead to pick one of the most conservative judges in the United States. I think Democrats need to say that Bush must select a judge from the middle and not someone likely to radically change the law in so many key areas.

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Fairfax, Va.: This question really isn't about Alito, but Roe v Wade. During the Clinton years, I never imagined Roe v Wade being overturned, and the development of drugs like RU-486 made it seem even less likely. If Alito gets confirmed, it now seems like a distinct possibility, even though technology has made abortions much easier, a woman can get an abortion without a doctor, in her own home! So why all the fuss about it now? Is it simply another "wedge issue" like gay marriage, flag burning etc., to mollify the conservative evangelical base?

Erwin Chemerinsky: The reality is that if Roe v. Wade is overturned, abortion will be a crime in over half the states. It certainly is possible that Congress will pass a law to prohibit all abortions in the United States. Abortion remains an enormously important issue in terms of women's lives and in terms of everyone's basic freedom of reproductive choice.

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Philadelphia, Pa.: Judge Alito upheld our state's abortion restrictions, including requiring that a woman notify the father that she plans to get an abortion. No exceptions are made, even in cases of abused women living in shelters. Shouldn't this reasoning except to raise significant questions on Judge Alito's decisions and might it lead to significant pro-choice opposition to this confirmation?

Erwin Chemerinsky: I think pro-choice groups will be unanimous in opposing Alito. The key question will be whether they and others can persuade moderate Republican and Democratic Senators to oppose Alito. The moderates will be decisive here.

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Toronto, Canada: I'm interested in your sense that certain appointees lack a human dimension, what my mother would call a "Mensch" - a missing element I see in Roberts as well as in Alito, now. They seem to be RoboJudges, who started out in kindergarten building careers as square-jawed advocates for the already rich and famous.

Erwin Chemerinsky: A judge's compassion matters enormously. I share your concern about Alito here. To mention one example, there was a decision in 2004 that concerned a woman and her 10 year-old daughter who were strip searched by the police when they were carrying out a search warrant. The issue was whether the police could be held liable. The woman and the daughter weren't suspected of anything. The Third Circuit, 2-1, ruled that the police were liable because they violated clearly established law. But Alito dissented and would have ruled for the police. To me, that shows a dramatic lack of human compassion and lack of respect for human dignity.

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Jessup, Md.: The Federalist Society has attempted to substitute theory and a very restrictive approach to finding liberty from our Constitution. Isn't anyone alarmed that in our society of more than 200 million people, the Justices are not only so unrepresentative of our makeup as a people, but also have less life experience than justices from the Warren and even the Burger court?

Erwin Chemerinsky: My objection to Alito is not that he has been a judge for 15 years. It is that his record shows a marked hostility to civil rights and civil liberties. Certainly, there are benefits to having Justices with a wide variety of perspectives and experiences. But I think it is most important to have Justices committed to enforcing the Constitution's protections of rights and liberties.

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Waterford, N.Y.: Hello, would you say the originalists view of the Constitution argued by Scalia and others is more of a political/ideological position or does merit?

Also could such a position work or is living constitution needed in today's society?

Erwin Chemerinsky: Advocates of originalism choose that position because it generally leads to the conservative results they like. They abandon originalism when it doesn't get those results. For example, Justice Scalia and other originalists completely abandon originalism when the issue is affirmative action, where the framers clearly intended to allow broad remedial actions.

The Constitution was written in 1787 for an agrarian slave society. It can govern us only if it is adapted by interpretation. There must be, and always has been, a living Constitution.

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Tyler, Tex.: Whether judges have the duty to support their rulings in a rational and reasoned manner with supporting authorities?

Erwin Chemerinsky: Of course, judges have to give reasons for their opinions. At the Supreme Court, the tradition is a published opinion for every decided case.

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Fairfax, Va.: I have always thought that the Gang of 14 "Compromise" was really a total cave-in by the Democrats wherein they agreed to eviscerate the filibuster rather than fight for it. What is your opinion about that agreement?

Erwin Chemerinsky: The filibuster has existed throughout American history. The effort by Republican Senators to eliminate it was power politics pure and simple. I am not sure why Democrats went along with the compromise unless they felt that they did not have the votes to keep the filibuster and it was the best they could do.

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Ann Arbor, Mich.: My dream Supreme Court nominee would be...Erwin Chemerinsky. Your hornbook got me through Con Law! Just wanted to get that out there. I can dream, can't I? But seriously, how many other people know, and think, as much about constitutional law? (Maybe I could have Larry Tribe or Cass Sunstein as backup choices.)

Erwin Chemerinsky: You made my day. I will root for you to get elected President (or at least have the President listen to you.) Larry Tribe and Cass Sunstein would be great choices. If only . . . Thanks for writing!

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Columbia, S.C.: I keep hearing liberals say that Bush should have appointed a moderate conservative in the mold of O'Connor. How can this be a valid argument given that Ginsburg was not a moderate liberal and she replaced the conservative white?

Erwin Chemerinsky: Ginsburg did not have the prospect of changing so many areas of law. O'Connor has been the fifth vote in the majority in areas such as abortion rights, affirmative action, death penalty, separation of church and state, campaign finance. The question is whether she should be replaced with a much more conservative Justice who will change the law in all of these areas or a moderate Justice who likely will keep the status quo in these areas. This was not at all the issue when Ginsburg was nominated.

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Boise, Idaho: What is Alito's position on Dred Scott? A vote to uphold?

Erwin Chemerinsky: I am sure Alito believes that Dred Scott was wrongly decided!

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Portland, Ore.: How many Supreme Court Justices have been prosecutors, and does that matter? It doesn't seem like he'd be too keen on understanding the criminal's point of view. Also, what's his view on affirmative action? He'd be the swing vote on that, right? From what I understand there was a 5-4 decision on whether affirmative action was constitutional, despite the fact that the 13th Amendment and 14th Amendments, I thought, were passed to provide just that...shouldn't he be asked about this stuff?

Erwin Chemerinsky: I don't have a count of the number of Justices who have been prosecutors. But Alito's opinions are quite hostile to the rights of criminal defendants. As for affirmative action, I don't know of any cases where he dealt with the issue, but he has consistently voted for narrowing the protections of federal race and gender discrimination laws.

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Seattle, Wash.: The late Judge Leon Higginbotham said that Samuel Alito was a conservative whom he respected. So has political scientist and philosopher Walter Murphy. Both are really respected liberals in the judiciary and academia, respectively. Should that matter to the Senate, or must we politicize the whole shabang?

Erwin Chemerinsky: The issue is not whether Alito is respected. He is. The question is what will his presence mean on the Supreme Court with regard to basic rights and liberties. It is President Bush who politicized the process by appointing a very conservative individual even though he knew that there would be very substantial opposition.

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Costa Mesa, Calif.: Do you see Roe being "overturned" on a big case or a group of them, or gradually whittled down under this Court? I'm with those who think overturning it will finally revitalize the Democratic Party, such that the GOP will regret getting what they wished for.

Erwin Chemerinsky: I think that the Court will vote to allow much more in the way of government regulation of abortion. As to overruling Roe, I think it very well could happen, especially if President Bush appoints another Justice to the Court.

Will it revitalize the Democratic party? I'm skeptical. But no matter what, it would mean that half the women in the United States would live in states where abortion would be illegal.

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Natchez, Miss.: Professor,

Wouldn't the Democrats be better off politically linking Griswald with Roe instead of just concentrating on Roe? Also, why not question if state's law banning abortion is prohibited by the Establishment Clause as well as 9th Amendment?

Erwin Chemerinsky: Yes, Democrats should link Roe to other privacy decisions including Griswold and those involving the right to marry, procreate, and custody of children.

Abortion laws do not violate the Establishment Clause because a law cannot be challenged just because its origins may be in religious beliefs. That's true of many laws.

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Orlando, Fla.: I understand that if there were no law schools you would not have a job, however do you find it odd that a Supreme Court Justice is not required to go to law school but most states require it in order to take the bar and practice law? Did the founding fathers do this intentionally or was it just that law school was not that common in the 1700s?

Erwin Chemerinsky: All Justices in American history have been lawyers. It is unthinkable that a non-lawyer would be put on the Supreme Court at this stage of American history.

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Washington, D.C.: Good afternoon Professor Chemerinsky,

These nominations always generate talk about political slogans: "the mainstream" and "judicial activism." I wanted to ask you about the mainstream. Is it fair to say that a majority of Americans believe both that the Constitution protects their right to privacy and that those protections that exist ought to be upheld? Is it fair to say that a majority of Americans believe that Congress has the power to regulate things like environmental degradation, machine guns and workplace safety? Is it fair to say that a jurist who does not share these beliefs is outside the mainstream?

Erwin Chemerinsky: I agree. In a recent opinion poll, 68 percent said that they favor continuing Roe v. Wade. I'd guess 90 percent want federal law to regulate machine guns. The problem is that Bush picked a Justice to please 25 percent, not the majority.

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Brooklyn, N.Y.: The Court has zero credibility, not because it's conservative but because it's a bunch of D.C. cronies. There is no other way to read Bush v. Gore. Tom DeLay just got a judge removed from the case because he was too partisan, but Scalia, a close personal friend of Cheney's, sits on cases involving the administration. I think it doesn't matter who gets on the court, sadly. I'm completely sympathetic to the idea of limited terms for Supreme Court judges. They're politicians: why pretend otherwise?

Erwin Chemerinsky: I wouldn't go that far. No Justice, so far as we know, gets lobbied. None gets campaign contributions. They decided cases to the best of their abilities. But their views and values are key in terms of how they vote.

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Jacksonville, Fla.: What do you consider to be the relevant considerations when evaluating a nominee to the Supreme Court?

Erwin Chemerinsky: Competence, judicial temperament, and ideology always have been used -- and must be used -- in evaluating nominees.

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Silver Spring, Md.: You are on record as being opposed to Michael McConnell's nomination to the Supreme Court. Some conservative law professors, like Marci Hamilton, who litigated the City of Boerne case, have called McConnell an activist in the area of Free Exercise of religion. How does Samuel Alito compare? Is he more or less activist than McConnell? Does it matter that he will make for a Catholic majority on the Court?

Erwin Chemerinsky: Alito has written a couple of opinions protective of free exercise of religion. But my sense is that Alito, like McConnell, would certainly vote to greatly limit abortion rights and likely to overrule Roe v. Wade.

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Lincoln, Neb.: You say that "evaluation of a candidate must include his or her ideology" because "Justices have great discretion and how they rule is often very much a product of their views." But isn't the point of a solid conservative pick like Sam Alito that he won't exercise discretion that is beyond the authority of a judge to exercise? Isn't that what judicial restraint means? You also say that "the Senate should refuse to confirm those who have views that it deems unacceptable". Is a belief in judicial restraint unacceptable?

Erwin Chemerinsky: I disagree. Alito will make value judgments just like all Justices must do so. Whether diversity in the classroom is a compelling interest or whether abortion is part of a woman's liberty or whether life in prison for shoplifting is cruel and unusual punishment all involve choices by the Justice. All Justices -- conservatives and liberals -- make choices. It is just wrong to say that any Justice can avoid this, however much he or she believes in judicial restraint.

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Boulder, Colo.: Yesterday I cherry-picked some of Alito's opinions and found a few where he came out on the side of the individual against the government. For instance, in Mitchum v. Hurt, 73 F.3d 30, he wrote an opinion reversing the district court's dismissal of three plaintiffs' claims against government agencies for alleged retaliatory firing after they had exercised their First Amendment rights. Certainly the bulk of his votes in disputes between the state and individuals favor the state, but is the devil really as black as he's being painted?

Erwin Chemerinsky: I, too, have read some decisions where Alito ruled in favor of individual rights. But overall, the vast majority of his opinions have been very conservative. Conservatives are rejoicing over this nomination and there is a reason for this based on Alito's record.

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Morristown, N.J.: How do you respond to liberals who say that O'Connor should be replaced by a moderate who shares a similar judicial temperament. Since when is that the benchmark for replacing justices? Wasn't Byron White, who voted against the Roe v. Wade decision, replaced by his polar opposite, Ruth Ginsberg?

Erwin Chemerinsky: The question is whether you would like to see the law change dramatically in the areas of abortion, affirmative action, separation of church and state, etc. If so, then replacing O'Connor with a much more conservative Justice makes sense. But if you disagree with these changes, then you would not want to see Alito replace O'Connor.

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Bethesda, Md.: I am strongly pro-choice, but I think Roe v. Wade is a mockery of constitutional law and should be overruled. There is nothing in the constitution that addresses a general right to privacy, reproductive rights, or abortion. Aren't those who support Roe v. Wade supporting the acceptability of the Supreme Court justices, a group of unelected elderly lawyers, imposing their views of what is "best" for our society, and vetoing the decisions of elected legislators with whom they disagree?

Erwin Chemerinsky: I disagree. For a century, the Court has protected a fundamental right to privacy even though it is not mentioned in the Constitution. I believe an aspect of this privacy is the right of the woman to choose whether to end her pregnancy. I think Roe v. Wade got it exactly right.

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