With our Alito’s America campaign, Campus Progress is going all-out to make sure that you know what’s at stake with President Bush’s nomination of Samuel Alito to the Supreme Court. How can you decode the legal-politico jargon involved, and have the proceedings broken down in plain English and analyzed in expert fashion? We were privileged to bring you two experts on the Supreme Court and the confirmation process to answer your questions in real time just as the first day of hearings concluded.
Melody Barnes, Executive Vice President for Policy at the Center for American Progress, served as chief counsel to Senator Edward M. Kennedy on the Senate Judiciary Committee. As Senator Kennedy’s chief counsel, she shaped civil rights, women’s health and reproductive rights, commercial law, and religious liberties laws, as well as executive branch and judicial appointments. Melody’s experience also includes an appointment as Director of Legislative Affairs for the U. S. Equal Employment Opportunity Commission and serving as assistant counsel to the U.S. House of Representatives Judiciary Subcommittee on Civil and Constitutional Rights.
Melody began her career as an attorney with Shearman & Sterling in New York City and is a member of both the New York State Bar Association and the District of Columbia Bar Association. She received her law degree from the University of Michigan and her bachelor’s degree from the University of North Carolina at Chapel Hill where she graduated with honors in history.
Robert Gordon, Senior Vice President for Economic Policy at the Center for American Progress, was the domestic policy director for the Kerry-Edwards campaign. Previously, Robert worked for Senator John Edwards, first as his Judiciary Committee counsel and legislative director in the Senate, then as the policy director for his presidential campaign.
Prior to his work on Capitol Hill, Robert was a law clerk for Justice Ruth Bader Ginsburg and a Skadden Fellow at the Juvenile Rights Division of the Legal Aid Society in New York City. Robert also served in the Clinton White House as an aide to the National Economic Council and the Office of National Service, where he helped craft the legislation creating AmeriCorps. Robert graduated from Harvard College with highest honors and from Yale Law School. He is also a nonresident fellow at the Brookings Institution.
A transcript of the chat follows:
Ben Adler: Our first question is:
Andrew Nissan: Is Alito too qualified to reject?
Melody Barnes: Hi Andrew. Was Bork too qualified to reject? In other words, “no.” In addition to strong academic credentials, Senators need to look at a host of other factors.
Warren Livingston: What other issues besides abortion will influence the Alito debate?
Robert Gordon: Hello Warren. Abortion is just one of many important issues. The question whether there are meaningful restraints on the executive branch (the President) is huge right now, with the revelations about surveillance not authorized by federal law. And then there’s a big debate about whether the Supreme Court should constrain Congress’s power to address national problems like the pollution and civil rights. And then there’s other issues lower on the radar screen but really important like criminal law and worker’s rights. So lots to worry about.
Sarah Peterson (St. Peter, MN): Given the Alito’s past decisions expanding executive powers, how can we expect him to rule on the Bush administration’s domestic wiretapping policies?
Robert Gordon: A couple of clues. He has been very deferential to the police in interpreting the protections of the 4th amendment against search and seizure. And he has interpreted the President’s power with regard to other branches of government very broadly. Both these positions suggest that he would be inclined to uphold broad assertions of presidential power to wiretap. But it’s important for senators to ask him.
Melody Barnes: I think members of the Committee will try to focus on this issue and Judge Alito will probably try to dodge it. That’s too bad because it’s clearly one of great importance. There are a number of signs that indicate that Alito will be highly deferential to the executive—his old memoranda that supports immunity for the executive branch and his opinions that similarly indicate a narrowing of congressional power and a broadening of executive power.
Linda: I’m asking my local paper for an editorial board meeting on Alito. Keeping in mind, the paper is very conservative, what would be the one thing I could point out to its conservative editors about Alito that they might not know that would help to convince them to take a stand against his nomination?
Melody Barnes: Linda, wouldn’t they be interested in our laws reflecting the will of the people? If so, shouldn’t they be concerned about Alito’s efforts to wrest control from the legislative branch—that which reflects the will of the people—and give greater deference to the executive? I think Alito’s distorted view of the President’s role in the legislative process—namely elevating the authority of presidential signing statements—to take authority away from Congress—should be disturbing to your hometown newspaper.
Robert Gordon: To my mind, there are at least two big concerns about Judge Alito that should matter to people across the political spectrum.
The first is that he actually appears to be quite a judicial activist in important ways. For example, he voted to strike down a federal law against possessing a machine gun (taking a position more conservative than justice Scalia in important ways) and a federal law on paid leave (taking a position mostly rejected by chief justice Rehnquist). Senator Tom Coburn, a very conservative republican, was honest enough to label these kinds of decisions as what they are—judicial activism. I think honest conservatives should be very troubled by them.
The second issue that should trouble conservatives is Judge Alito’s attitude toward government power. As I mentioned before, he is very deferential to the police in search and seizure cases, including for example cases where warrants were defective. I did a little study, and in every case where Judge Alito disagreed with judges on the same 3-judge panel regarding individual rights, he was less protective of individual rights than other judges. Of course we need vigorous police enforcement to protect us—personal safety really is one of our most important civil rights. But, as many conservatives recognize, we also need to honor our individual rights. The concern is that Judge Alito won’t reach the right balance.
Emily Myers (Ohio State University, Lima, Ohio): A couple of my friends told me that Alito isn’t obligated to answer any of the questions that he is asked during his hearing. Is this true? If so, is it possible that he will still be confirmed despite his unwillingness to cooperate?
Robert Gordon: Emily, you know that famous song, 99 ways to leave your lover? Well, there are 99 ways for Judge Alito not to answer a question.
The real issue is whether the senators will accept non-answers, or instead make clear that they won’t approve Judge Alito unless he tells them what he thinks—not about specific questions that will come before the Court, but about his basic approach to key legal questions. If the senators don’t demand much by way of answers, you can’t really blame Judge Alito for not offering much either.
Melody Barnes: Emily, I think this will come down to a battle over definition. What one Senator deems as “cooperative” another sees as a slap in the face. Watch the kabuki dance around this one. Progressive Senators will ask questions and Alito will dance around the answer. When he gets pressed, a conservative Senator will step in and accuse his progressive colleague of “harassing” the nominee. There will be lots of “shock and awe” regarding the treatment of the “distinguished jurist.” In other words, Alito will try to answer just enough to get by. The real question is what will Senators—questions unanswered—do about it—particularly when the stakes are so high for the country. How will they respond when, at the end of the hearings, we don’t know much more than we know now?
Christine: Are these hearings just for show? When Lindsey Graham says Alito pretty much has his vote, and that he has it “pretty much locked up”, then my question becomes, “What’s the point?”
Robert Gordon: I am told there are only 50 ways to leave your lover. Well, there are even more ways to dodge a question!
I think it’s really up to the Democrats (and maybe Arlen Specter) whether the hearings are for show or not. Judge Alito certainly has Lindsey Graham’s vote locked up, but he only has one vote.
Melody Barnes: Christine, don’t give up on our system. Despite the problems and pitfalls, it has served us pretty well for over 200 years. In fact, the more people like you demand real questions and real answers, the more likely we are to have real hearings. When Senators and the White House feel that only a few are paying attention, they act accordingly.
Bryan Collinsworth (Sarah Lawrence College): Why do progressives let conservatives get away with claiming that strict constructionism was the “original intent” of the framers of the Constitution? Don’t the federal power philosophies of Hamilton and Madison belie this claim?
Robert Gordon: You are right that many constitutional provisions were written to be interpreted more broadly than “strict constructionists” would like—so that if you are serious about original intent, you are not going to be a strict constructionist, at least in the way that term is used politically today. That said, progressives have done a lousy job articulating alternatives to Justice Scalia’s vision of the law. That is one of the big challenges today. You should go to law school. Or before that, try reading Justice Breyer’s new book, which touches on some of these themes.
Annika Carlson (Hope College, Holland, MI): How would Alito’s confirmation affect the likelihood of Roe being overturned?
Melody Barnes: Annika, two important points to your question: how Alito affects Roe being overturned and how his vote affects access to reproductive health care in America even if Roe is not overturned.
If you take Alito’s writings seriously, it’s clear he believes the Constitution doesn’t support Roe. It’s hard to imagine that if the question is before him, he doesn’t vote to strike it down. That’s one more vote against Roe. However, even if we don’t get to that question, Alito’s writings indicate that he understands that Roe can be undermined bit by bit. Even without a frontal attack, with Alito on the Court, I’m betting that women have a very narrow right, indeed.
Brandon McBride (Utah, Salt lake City, Utah): Wouldn’t these hearings be more productive if the tradition and politeness we often see in the Senate were thrown out the window and there was a dialogue mirroring British Parliament?
Robert Gordon: It wouldn’t need to look like Parliament – it could just be like a Supreme Court oral argument! The justices are incredibly aggressive in asking questions – they interrupt, they tell lawyers when they find answers unsatisfactory, etc. It is quite exciting to watch. It would definitely be interesting if nomination hearings looked like that too. And we’d probably learn more. Some questions would be whether we would be comfortable seeing a nominee roughed up that way, and whether perhaps nominees would be pushed to answer questions they shouldn’t. Of course we’re a long, long way from that.
Richard (Clayton, NC): Is there any logical way for him to avoid the question of the legality of wiretapping without a warrant?
Robert Gordon: I expect he will say it is a question that could come before him. But it should be possible to get at his views of that question indirectly.
Elliot Dorian (UMASS, NYC): Is Roe v. Wade a big issue in the Alito nomination because of the political importance of abortion or because it is important to determine how likely Alito is to overturn judicial precedent?
Robert Gordon: I think both.
In itself, Roe is an enormously important decision in setting certain important decisions by women beyond the reach of the law.
But Roe is also a bellwether for how a judge interprets the law—whether he or she recognizes rights not spelled out by name in the Constitution, and how much he or she respects precedent. Even among conservative judges, there are big divides on those questions. The second Justice Harlan, a conservative by any measure, wrote one of the most important opinions on substantive due process, one of the sources for privacy rights as we know them. And Chief Justice Rehnquist was ultimately unwilling to throw out some precedents, like Miranda. So it’s important to place Judge Alito’s views on those questions.
Nate Allen: Analysts on C-Span seem fairly certain that Alito has a Congressional confirmation locked up. What do you feel would have to come out of these hearings in order for Alito to NOT be confirmed?
Robert Gordon: It’s a good question. Unfortunately, I am almost as bad at political punditry as I am at music history, so I don’t really know. I guess I think the key question will be whether Judge Alito will honor some precedents that most Americans now depend on—recognizing Congress’s power to address important national problems, respecting personal privacy, maintaining commitments to civil rights under law. If he does that, he’ll get confirmed. If he doesn’t, it will be up to Democrats and moderate Republicans whether they are willing to put up a fight.
Ben Adler: this will be the last question, alas also requiring a little punditry:
Kristi: In the event of a filibuster regarding Alito how likely is it that the nuclear option would be put back on the table?
Robert Gordon: Did I mention that there are 172 ways to leave your lover?
I think that if the Democrats filibuster, the Republicans will use the nuclear option. That prediction and $1.35 will get you on the Metro here in DC.
This has been great fun. Thank you for having me.
August J. Pollak (Campus Progress): Thanks, Robert and Melody! This was a great chat and we appreciate you joining us. Thanks to everyone who participated, and check back at CampusProgress.org soon for a transcript of this chat!