The confirmation of Judge Samuel A. Alito Jr. LAW ’75 as the 110th justice of the U.S. Supreme Court produced a mix of excitement, frustration and uncertainty among members of the Yale community Tuesday after the former Reagan administration lawyer and federal appellate judge passed the Senate by a vote of 58-42.
After the votes were tallied, students who had worked to block Alito’s confirmation expressed concern that his ascension will shift the high court to the right, potentially resulting in a rollback in civil rights and an expansion of executive authority. But supporters of the new justice celebrated his ascension as a victory for judicial modesty and restraint.
Former Yale Law School Dean and current professor Anthony Kronman LAW ’75, one of Alito’s classmates at Yale, praised Alito, who was nominated to the bench by President George W. Bush ’68 in October, as a jurist who has exercised restraint and acted with care in his decisions.
“There are cases I would have decided differently, but even where I think that he and I might disagree on the right outcome, I would not characterize his position as radical or reckless,” Kronman said. “Indeed, I would say that his opinions are consistently marked by thoughtfulness, attention to fact, and an appropriate modesty about the role of judges in our complex system of government.”
Kronman testified in favor of Alito’s confirmation at a Senate Judiciary Committee hearing last month.
But Ronald Sullivan, another Law School professor, also testified before the committee, and said during his testimony that he disagreed with Alito’s decisions in several Fourth Amendment cases. Sullivan said Alito has taken an overly restrictive view of defendants’ rights and shown a serious disrespect for individuals’ right to privacy.
“Judge Alito tended to have very narrow interpretations when it regarded the scope of defendants’ rights, but very broad interpretative principles when it regarded the scope of government authority,” Sullivan said. “He showed a troubling disregard for some very real dignity and privacy issues that were implicated by some cases.”
Michael Horowitz LAW ’64, a senior fellow at the Hudson Institute who supported Alito, said he thinks controls on the power of the executive should be enacted through democratic processes, not the appointment of judges. Under Alito, public officials will be able to engage in a robust public debate free of judicial interference, he said.
“I just think that Alito is going to allow elected officials to be more empowered and accountable,” Horowitz said.
Gerald Walpin LAW ’55, a member of Yale Law Students and Alumni for Alito — which was organized to encourage confirmation for the nominee — said he thinks Alito’s demonstrated willingness to set aside his personal ideology in favor of the relevant facts and precedents when deciding cases qualified him for a seat on the court. Political philosophy should not play a role in a justice’s confirmation hearings, Walpin said.
“The confirmation of a Supreme Court justice should be based upon ability, experience and integrity, on all of which factors everyone agreed Alito had a wonderful record,” he said. “That doesn’t mean that I agreed with him on every decision he made. I didn’t. That’s not the test of whether somebody has been a good judge and whether somebody would be a good justice.”
Joshua Hawley LAW ’06, president of the Yale Law Federalist Society, the Yale branch of the national conservative legal group, also said he welcomed Alito’s confirmation because of what he perceives as the justice’s aversion to judicial activism.
But Ian Bassin LAW ’06 said he thinks Alito’s claims that he will interpret the Constitution literally are disingenuous.
“What you find with people like Judge Alito, who pledged in his ’85 memo that he is a conservative and he supports the agenda of the Reagan administration, is they come to the conclusions they want to come to using whatever legal tools will get them there,” he said. “When a so-called ‘strict constructionist’ doesn’t come to the conclusion he wants, he will abandon that philosophy for whatever works.”
Bassin contributed to the Law School’s Alito Project, a comprehensive review of the judicial opinions Alito wrote during his 15 years on the U.S. Court of Appeals for the Third Circuit. Alito took a restrictive view of individual rights during his time on the bench, the report found.
Though the project’s report stopped shy of concluding on Alito’s ability to serve on the high court, Barrin said he found the results troubling.
“The report showed that Judge Alito consistently came out on the side of government and big business,” Bassin said. “Whenever individual rights were at stake, he tended to rule against the individual.”
Hawley said the biggest question mark hanging over Alito as he takes his seat on the court is how the new justice will adhere to past Supreme Court cases. Although he meticulously followed both Third Circuit and Supreme Court precedents while on the lower court, Hawley said, Alito will not be bound to follow those precedents in his new position.
“I’m curious to see how he treats precedent on the Supreme Court,” he said. “I’ll be interested to see what he does, particularly in the area of privacy rights.”
With regard to issues likely to come before the court, Yale College Democrats President Brendan Gants ’08 said he is uneasy about how Alito might rule in cases involving presidential authority.
“There are a number of issues, one of those being deference to executive authority and whether Alito would enforce legal restrictions on the president,” Gants said. “Given some of what’s in his record and what he said at his confirmation hearings, there is a chance he will support broad, unchecked presidential power in areas like the war on terrorism in a way that will serve to fundamentally undermine American values.”
But Alex Yergin ’07, a member of the Yale College Republicans, said he was impressed by Alito during the confirmation hearings and thinks he will make a conscientious justice.
“I welcome Alito to the court,” Yergin said. “He struck me as a very sharp and incisive person. He showed in the hearing that he has very sound legal mind, and I think he will serve this country well.”
Four Democrats in the Senate and all but one Republican — Lincoln Chafee of Rhode Island — voted to confirm Alito.