The Alito Briefing

As the confirmation hearings for U.S. Supreme Court nominee Samuel A. Alito Jr. get underway, a two-day profile by Washington Post reporters Jo Becker and Dale Russakoff traces his life from jungle gym to judge's chambers. What they found was a sharp intellectual who lived to follow the rules. Becker and Russakoff were online on Monday, Jan. 9, at 11 a.m. ET to respond to questions about their stories and the man who could replace Justice Sandra Day O'Connor.

The transcript follows.

____________________

Dale Russakoff: Good morning and welcome to washingtonpost.com. Thanks for joining us and we look forward to an interesting and lively discussion about the Alito nomination.

Jo Becker: And thanks for joining us. We're looking forward to taking your questions.

_______________________

Philadelphia, Pa.: In your profile, you describe how Judge Garth "once rated Alito 16 1/2 out of 10 as a clerk". Being unfamiliar with the clerk rating system, I would appreciate you please describing how the rating scale works and whether that is an unusual score.

Dale Russakoff: There is no official rating system. It was his informal way of saying that, in his view, Alito was off the charts.

Jo Becker: There is no formal "clerk rating system." Judge Garth wrote to support Alito's nomination to become U.S. Attorney, and later, a judge on the 3rd circuit court of appeals, where Judge Garth sits and Alito clerked after law school. He said that on a scale of one to 10, Alito was a "16 1/2." Judge Garth and a number of 3rd circuit judges with whom Alito worked are now supporting his nomination to the Supreme Court. Some are planning to testify at the hearings, which is quite unusual. Federal judges are often loath to wade into nomination battles because they are so political.

_______________________

Walkersville, Maryland: What are both sides of the CAP issue?

Dale Russakoff: When it was founded in 1972, CAP said it wanted to provide another voice in the Princeton community as social changes swept the country and the university. Former Sen. Bill Bradley, a 1965 graduate, joined CAP's advisory board based on that premise, but resigned a couple of months later in protest. He wrote in a letter to the group that he felt that rather than providing balance, it "prefers to present the right wing view within the Princeton community." In letters, fliers and magazines sent to alumni, the group was extremely critical of Princeton's newly adopted polices of co-education and increasing minority admissions. Its co-founder and chief bankroller, Shelby Cullom Davis '30, was described in the Daily Princetonian as "a strong traditionalist, firmly opposed to the many of the new directions Princeton was taking, including coeducation." Davis wrote in CAP's magazine, "Prospect:" "May I recall, and with some nostalgia, my father's 50th reunion, a body of men, relatively homogenous in interests and backgrounds, who had known and liked each other over the years during which they had contributed much in spirit and substance to the greatness of Princeton. . . I cannot envisage a similar happening in the future, with an undergraduate student population of approximately 40% women and minorities, such as the Administration has proposed."

Those actively involved in CAP, which died out in the early 1980s, said they do not remember Alito being involved and one said he vaguely remembered him sending in a contribution to join the group. I read every magazine the group published in its 12 years and saw mention of Alito anywhere. Alito himself has told the Judiciary Committee that he has no recollection of having belonged to CAP even though he listed it among his affiliations -- as evidence of his conservative convictions--when applying for a political appointment in the Reagan Justice Department.

By the way, CAP stands for Concerned Alumni of Princeton

_______________________

Fairfax County, Va.: I'm sure I'm not the only Princeton graduate in Wash., D.C. who was interested in the nitty gritty details of Mr. Alito's undergrad experience.

But you left out the biggest thing in any Princeton senior's life: his thesis topic. P.U. requires a senior thesis to graduate and even has seniors take fewer courses to get the work done. What did he write about? What did his thesis advisor remember about his work? Procrastinator or plan-aheader? Just curious...

P.S. Even as a pro-choice leftie, I can tell you Concerned Alumni of Princeton was not the worst thing in the world--just a group that got upset when Princeton began admitting women in 1970 and the world as they knew it came to an end. Going coed was a huge change, and of course some schools (mostly women's schools) remain one-gender to this day. But most of the old guard came around once they had daughters to send there.

Dale Russakoff: Yes, that section hit the cutting room floor as we tried to get our stories down to a reasonable length. Alito wrote a 137-page thesis advised by Prof. Walter Murphy on the Italian Constitutional Court, which is the closest thing to the Supreme Court in Italy. Murphy said it was one of the best undergraduate theses he ever advised, and one of the few he saved. It's a good thing he did because the thesis disappeared years ago from the Mudd Library and professor Murphy made his copy available. It's longest chapter analyzes the way Italy's constitutional court wrestled with the church-state issue in the 1960s. Read the thesis here: http://library.princeton.edu/about/news.php?date=2005-12

See above answer regarding CAP (Concerned Alumni of Princeton)

_______________________

Washington, D.C.: John Roberts appeared to be dull, maybe the dullest man in town, to hear him speak. Does the Administration think they are getting a tactical advantage by nominating people that most people couldn't pick out of a lineup?

Jo Becker: Interesting point of view, Washington. I'm not going to weigh in on whether the nominees are dull or not. But I can tell you that both ended up with a far more extensive public paper trail than some within the administration had anticipated - both from their days in the Reagan Administration. Judge Alito had been a court of appeals court judge for far longer than Judge Roberts, so he had a copious record of opinions to be analyzed. But in terms of his personal views, the Reagan-era documents proved to be quite interesting. In an application to become a political appointment, for instance, Alito said he was "particularly" proud of the work he had done to help the administration in its quest to end certain affirmative action programs and convince the Supreme Court that no right to abortion exists in the Constitution. Another Reagan-era document from his days in the Solicitor General's office outlined his strategy for eventually overturning Roe v. Wade and in the meantime "mitigating" its effects. Solicitor General documents are typically not public, but they were released under a Freedom of Information request made by media organizations because the documents had been sent to others outside of that office. Similarly, the public learned about many of Justice Roberts' views, at least as a young lawyer in the administration, from documents requested by media organizations.

_______________________

Rockville, Md.: Could someone please explain the "one man, one vote" issue that keeps coming up? How could Judge Alito or anyone else be opposed to it?

Jo Becker: Thanks for your question, Rockville.

Prior to a series of 1960s era rulings, the court did not wade into what some have called the "political thicket" of legislative redistricting. Drawing district lines was left up to lawmakers' themselves. This often resulted in a concentration of power in less populated rural areas. The one-man one vote principle said that districts had to be roughly equal in population. The decision was lauded by some because it shifted power to urban areas, and that helped solve the issue of minority disenfranchisement. But it was criticized in other quarters as the judicial branch meddling in an area where it did not belong. Critics said that the Constitution says nothing about "one-man, one vote." They argued that the Framers never contemplated such a thing, given that they created a U.S. Senate where small states and large states are each given just two senators. Today, however, the decision is far more accepted. Judge Alito wrote in 1985 that he disagreed with the 1960s-era decisions on reapportionment, though in meetings with senators he has said that he believes one-man one-vote is a "bedrock principle." An interesting aside: Judge Alito's father worked for the NJ Legislature and was tasked with redrawing that state's maps in the wake of the one-man one-vote decision.

_______________________

Chicago, Ill.: There seem to be a lot of stories proclaiming that Alito is funny, but there are a dearth of anecdotes showing this. Putting girls with their hair dyed in campaign posters in middle school and putting pink flamingos in front of his office do not show a sense of humor. Instead of taking people's word for it, can reporters actually get some anecdotes showing this? Or is all of the actual evidence that he is funny of the "you had to be there" variety?

Jo Becker: Hi, Chicago.

I guess funny is in the eyes of the beholder. But those who know Judge Alito well say he has quite a dry wit. Colleagues from his days as a US Attorney, for instance, recall his comedic sense of timing when he gave speeches at office parties, something they said was pretty unexpected in a guy as serious as Alito.

Dale Russakoff: Chicago, I think you're right that his wit is of the "you had to be there" variety. he's apparently very dry and funny in the moment, but not so much in the retelling. After hearing everyone testify to his sense of humor, I made a point of asking at least half the people I interviewed for an example. The only one that came close to translating was a story about him and his law school roommate Mark Dwyer. Alito was annoyed by Dwyer's pipe smoking (interesting because Alito's father was a pipe smoker) and Dwyer was annoyed by Alito's drinking of scotch. Alito once cut up rubber bands and put them in Dwyer's tobacco pouch so that when Dwyer lit up he found himself smoking burning rubber. Dwyer retaliated by putting salt in the ice cubes in their refrigerator so that Alito wound up drinking salty scotch.... Okay, I agree, it's not hilarious, but that's the best I can do.

Also, Alito's former Princeton roommate Ken Burns, now a lawyer in SF, said he visits Alito when work brings him to the Newark/Philadelphia area where Alito sits. Once Alito told him he had a case dealing with a Tennessee walking horse. Burns said, "Sam, I didn't know Tennessee was in the 3d circuit. How did you end up with a Tennessee Walking Horse in your court?" Alito responded, "This one wandered into Pennsylvania."

By the way, the student council campaign about the hair dye was not Alito's idea. It was proposed by his friend Jim Castranova, whose father ran a beauty supply business and happened to have a lot of extra posters of women having their hair colored. Castranova was Alito's campaign manager and was worried that he might lose because he knew very few of the "non-academic kids." So he came up with this campaign theme to get their attention and put the posters up in the home ec room, the shop class, the automotive class, etc. He said Sam loved it, but it wasn't his idea.

_______________________

Towson, Md.: Any chance Justice Kennedy moves to the left/center on the big issues (mostly the social ones) with Alito coming to the court? There has been a history of some justices doing so over time and Justice Kennedy has already shown this propensity with some of the big cases.

Jo Becker: That is an important question, Towson. Justice Kennedy will certainly be a pivotal vote on a number of key issues. It's hard to predict what will happen, though. Any thoughts out there?

_______________________

Rockville, Md.: I am confused on the relevance of CAP. Lots of people join organizations in college that are just part of the college exp. At UMCP there are lots of organizations that would be considered loco by the average person. Isn't this just part of being in college? I could see relevance if after graduation he formed or joined similar groups but that does not seem to be the case.

Dale Russakoff: Alito joined CAP after graduating. We do not know exactly when he joined--only that he listed it among his affiliations in 1985. As an undergraduate, by contrast, he joined no conservative organizations.

Jo Becker: Judge Alito, in his answers to the Senate, said that other than the job application he filled out in 1985, he had no recollection of being a member of the group. Look for Democrats on the Judiciary Committee to press him on this question.

_______________________

Washington, D.C.: Can you put the Bork thing in perspective? What does that really say about this guy?

Dale Russakoff: An excellent question that the Judiciary Committee probably will explore with Judge Alito. It shows that Judge Alito in 1988 viewed the constitution in much the same way that Judge Bork did. Bork said at the time that the Constitution protected only those rights intended by the Framers--as reflected in their precise words. He saw no basis for a right to privacy or abortion or for the Supreme Court's one man, one vote rulings. He also said that Brown v. Board of Education and other landmark desegregation rulings were not based on the constitution but on the egalitarian views of individual justices. This is not to say that Alito has these views today. Fellow judges say that his 15 years on the appellate bench are sure to have affected the views he had when he arrived. Still, Alito's record reveals that he believes strongly in a much more limited role for the judiciary than in the days of the Warren Court, which produced the decisions mentioned above.

_______________________

Concord, N.H.: Does it make sense to think of Judge Alito as John Roberts with a longer list of rulings but without the D.C. polish? Or are there fundamental jurisprudential ways in which they ought not to be lumped together?

Jo Becker: Thank you for your question, Concord. Certainly I think that Judge Alito was less cautious in certain Reagan-era memos than Justice Roberts. But it may be too early to tell how alike they are. Justice Roberts just recently became chief justice. If confirmed, Judge Alito will for the first time be unbound from the need to follow Supreme Court precedent. A good portion of the hearing will focus on Judge Alito's views on stare decisis, a Latin term that refers to how much weight he will give the court's prior rulings.

_______________________

Fairfax, Virginia: Have Alito's rulings generally been more pro corporate interests than pro worker's rights? Why is there so much in The Post about Alito's biography rather than the impact of his rulings in terms of economic winners and losers in our society?

Dale Russakoff: The Post published an extensive analysis last weekend of Alito's judicial record that answers this question. Here is a link that will get you to the article as well as a number of interactive aids that help you see how his record compares to that of other appellate judges.

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/31/AR2005123100328.html

One reason to look carefully at a judge's life experiences is that no matter how carefully judges try to stick to the letter of the constitution and the law, they all emphasize that they are human beings and no two of them see the laws exactly the same way. Understanding the human being doesn't tell you everything, but neither does his record. Issues will come up during his tenure on the Supreme Court, if he is confirmed, that haven't even taken shape yet. For that reason, it's helpful to know the "whole person" who will be sitting in judgment on such issues 10, 20 or more years down the road.

_______________________

Kansas City: Alito's comment on Hank Aaron seems idiotic rather than great. Isn't the point of affirmative action to get people into position rather than impact outcomes?

Also if his 1985 job application statements should be viewed as just that, words designed to get a job rather than actual viewpoints, what does that say about the people running the Reagan Justice Department?

Jo Becker: Thanks for your question, Kansas City.

Alito's comments on Hank Aaron were praised by then Solicitor General Charles Fried. But they were criticized by others, who pointed out that there was no suggestion in the Wygant v. Jackson case that minority teachers were held to lower standards than white teachers. The Reagan administration felt that affirmative action programs should be limited only to individuals who could prove they were personally discriminated against. Their opponents felt that the whole point of affirmative action was to address a history of inequities that had left women and minorities behind their white male counterparts, whether they had personally experienced discrimination or not.

Dale Russakoff: For an in-depth look at the Wygant case--the affirmative action case for which Alito wrote the brief mentioning Hank Aaron--see The Tenth Justice, a book by Lincoln Caplan. Here is how he critiqued the Hank Aaron reference:

"It implied that affirmative action in the case of a Henry Aaron would mean moving in the fences, as if minority teachers in the schools were permitted to impart less knowledge to their students than other teachers. For the analogy to work, however, it had to describe how a black athlete like Aaron might realistically benefit from affirmative action-how he might get a special chance to prove his talents as a ballplayer and earn a job as a major leaguer. A minority teacher hired through affirmative action in Jackson [Michigan] was expected to perform in the classroom at the same level as his colleagues. Similarly, once an athlete stepped up to the plate, he would face the same pitcher and have to hit a home run over the same fence as anyone else."

_______________________

Birmingham, Ala.: Don't Alito's "explanations" of various positions taken in job applications as contextual undermine his supposed qualifications for having a judicial temperament (e.g. Roe v. Wade is legally unsupportable? Women should not be admitted to Princeton?) Either he believed those things or he didn't when he wrote them, either he was part of "CAP" or he wasn't. If he was admit it. If he wasn't, admit he lied to get a job. Can we expect Alito to be called to give a straight answer to these questions in what is also a job application process?

Jo Becker: Hi Birmingham. This is an area that Democrats have promised to explore during the hearings beginning today, so we'll have to watch to see what Judge Alito has to say.

_______________________

Arlington, Va.: What's with you people putting Alito's belief in Robert Bork's qualifications high in the story, like that's an indictable offense? Like it should make him unconfirmable? Do you believe that Robert Bork's legal career since 1987 shows that he couldn't be trusted for the court?

Jo Becker: Hi Arlington,

We viewed it not as indictable but as interesting. People have different views on Judge Bork, as was evident in his 1987 confirmation hearings. To some, his views that the only principled way to interpret the Constitution is to look at the actual words that the Framers used and what they were understood to mean at that time is a principled one. This camp believes that the judicial branch too often sees rights within the constitution that aren't there, and that if the people want rights like the right to abortion, they should vote to amend the Constitution. But to Judge Bork's critics, his is a frozen view that would wipe away many existing protections. This camp believes that the Constitution ought to be adaptable to changing times and societal mores. It might have been acceptable to execute a 17-year old in the 1700s, they argue, but not today.

_____________________

Washington, D.C.: Isn't much of the hype about Alito overturning Roe just that, hype? Isn't there still a five-member pro-Roe majority?

Jo Becker: Thanks, Washington. You are correct that Justice Kennedy has voted with the more liberal members of the court in this area. The question most legal observers are focused on is whether there is a five-vote majority to reject certain abortion restrictions, such as parental consent laws and the like.

______________________

Austin, Tex.: It's always seemed to me that one of the most fundamental ways in which the world divides is between people who like/need lots of order and hierarchy in their lives, and those who don't.

I really think this explains a lot. Hierarchy people, for instance, are more likely to be attracted to the military. Non-hierarchy people, regardless of political attitudes, are more likely to appreciate the more anarchic aspects of the sixties. (Sometimes I even think this explains whether people prefer dogs or cats.)

I don't have a specific question, except to ask your thoughts on this broader issue, and why you think Alito came down on the side he did.

Dale Russakoff: Hello Austin. That's an very interesting thought. Alito came of age in an era --the 60s and 70s--when the "old order" was breaking down in many ways. As we pointed out, he went to universities where students overwhelmingly embraced the changes sweeping their society, but he ended up looking instead for order amid the chaos. The study of law his vehicle. His sister, Rosemary, an attorney who is very close to him, told us is that "he's a person who thinks carefully and who want things to proceed in an orderly fashion." It seems to have been something that was true of him from a very early age. To say why, we'd need a lot more information!

_______________________

Jo Becker: We're out of time, but thanks so much for your interest and for joining us today. We've enjoyed it, and we hope you have too.

Dale Russakoff: Thanks so much to everyone for your interest. There's lots more information on www.washingtonpost.com. Check it out!

_______________________

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.