January 6, 2006

Direct Perspectives on Samuel Alito III

Carroll Andrew Morse

Anchor Rising continues its interview with Supreme Court nominee Samuel Alito's law school classmate Mark Dwyer and former law clerk Thomas Gentile. Mr. Dwyer and Mr. Gentile can be viewed on 10 News Conference, on WJAR-TV (Channel 10) this Sunday at 6:30 AM. To read Anchor Rising's earlier interview with former Alito law clerk Susan Sullivan, click here.

Anchor Rising: Give us legal laypeople a hint of what to look for in the confirmation hearings that will tell us about what kind of Supreme Court Justice Samuel Alito would be.

Mark Dwyer: You’ll see him be calm, collected and precise. I don’t know what the strategy is for when you say “I can’t answer that question because it may come before me someday” and when you say “look at my past opinions and here’s what I’ve said about that in the past”. I don’t know just where he’s going to draw that line. I guess Judge Roberts drew it in a pretty good place; he’s probably going to try to do about the same thing. But you will see him when he talks be precise in his answers. He will get clarification when the Senators, as they will, ask questions that don’t make much sense. He’s appeared in front of the Supreme Court and done a great job there. For him to appear in front of this group of Senators -- who are not as well versed in the subjects they’ll be asking about as are Supreme Court Justices when they talk to you -- is not going to be a big shock to his system. He is going to be fine. He going to perform, I predict, extremely well, show his intelligence and show what a nice guy he is.

Thomas Gentile: During the confirmation hearings, all of America will see Judge Alito’s facility for legal issues that have come before him in his 15 years on the court of appeals and are coming before the Supreme Court now. Judge Alito knows this stuff and he knows it cold. When I was a law clerk, there were times that Judge Alito would dictate opinions to his clerks off the top of his head -- complete with case cites and page cites. America will be impressed by the scope of his knowledge. America will also be impressed when it sees Judge Alito’s dedication to faithfully applying the law and to never having his personal opinions interfere with his legal decision making process.

AR: If you could tell people something you think will be lost in the fog of partisanship and the focus on judicial outcomes that we will certainly see in the next few weeks, what would it be?

MD: You’re going to hear a lot of Senators and certainly a lot of lobbyists involved in the process look at one opinion that Sam wrote and not pay attention to the reasoning about how he got to the ending. They’ll find one opinion in a particular area, be it abortion, the environment, or employee rights, one opinion they disagree with, and conclude from that one opinion that Sam is a danger to the country because he is anti-abortion, or anti-whatever. They will not be looking at the whole group of opinions he has written over 15 years. They won’t be looking at the group of opinions he has written in a particular area. They will look at the one they don’t like and try to make hay out of that by making this all a political process instead of an assessment of whether somebody is a restrained and fair judge. So watch for that. You’ll see people distort his record by focusing on the one case they don’t agree with and not explaining how the law made him get there.

TG: America has a choice here. It’s a choice about the role of the federal judiciary in our Constitutional democracy. If America wants the kind of Judge who decides cases, regardless of ideology, based on the law and the precedents and the facts of each case, then Sam Alito is the kind of judge they want sitting on the Supreme Court. If America wants judges who reach into their own policy preferences and create the outcome in cases they want to see happen, regardless of what the law requires, then Sam Alito is not the judge for them. I think when America watches the confirmation hearings, America will see that judge Alito respects the limited role of the judiciary in America’s constitutional democracy.