Nominee Has Some Unexpected Supporters
Samuel A. Alito Jr. was quickly branded a hard-core conservative after President Bush announced his nomination, but a surprising number of liberal-leaning judges and ex-clerks say they support his elevation to the Supreme Court.
Those who have worked alongside him say he was neither an ideologue nor a judge with an agenda, conservative or otherwise. They caution against attaching a label to Alito.
Kate Pringle, a New York lawyer who worked last year on Sen. John F. Kerry’s presidential campaign, describes herself as a left-leaning Democrat and a big fan of Alito’s.
She worked for him as a law clerk in 1994, and said she was troubled by the initial reaction to his nomination. “He was not, in my personal experience, an ideologue. He pays attention to the facts of cases and applies the law in a careful way. He is conservative in that sense; his opinions don’t demonstrate an ideological slant,” she said.
Jeff Wasserstein, a Washington lawyer who clerked for Alito in 1998, echoes her view.
“I am a Democrat who always voted Democratic, except when I vote for a Green candidate -- but Judge Alito was not interested in the ideology of his clerks,” he said. “He didn’t decide cases based on ideology, and his record was not extremely conservative.”
As an example, he cited a case in which police in Pennsylvania sent out a bulletin that called for the arrest of a black man in a black sports car. Police stopped such a vehicle and found a gun, but Alito voted to overturn the man’s conviction, saying that that general identification did not amount to probable cause.
“This was a classic case of ‘driving while black,’ ” Wasserstein said, referring to the complaint that black motorists are targeted by police. Though Alito “was a former prosecutor, he was very fair and open-minded in looking at cases and applying the law,” Wasserstein said.
It is not unusual for former law clerks to have fond recollections of the judge they worked for. And it is common for judges to speak respectfully of their colleagues. But for a judge being portrayed by the right and left as a hard-right conservative, Alito’s enthusiastic backing by liberal associates is striking.
Former federal Judge Timothy K. Lewis said that when he joined the U.S. 3rd Circuit Court of Appeals in 1992, he consulted his mentor, Judge A. Leon Higginbotham Jr. The late Higginbotham, a legendary liberal and a scholar of U.S. racial history, was the only other black judge on the Philadelphia-based court at the time.
“As he was going down the roster of colleagues, he got to Sam Alito. I expressed some concern about [him] being so conservative. He said, ‘No, no. Sam Alito is my favorite judge to sit with on this court. He is a wonderful judge and a terrific human being. Sam Alito is my kind of conservative. He is intellectually honest. He doesn’t have an agenda. He is not an ideologue,’ ” Higginbotham said, according to Lewis.
“I really was surprised to hear that, but my experience with him on the 3rd Circuit bore that out,” added Lewis, who had a liberal record during his seven years on the bench. “Alito does not have an agenda, contrary to what the Republican right is saying about him being a ‘home run.’ He is not result-oriented. He is an honest conservative judge who believes in judicial restraint and judicial deference.”
In January 1998, Alito, joined by Judge Lewis, ruled that a Pennsylvania police officer had no probable cause to stop a black man driving a sports car after a rash of robberies in which two black males allegedly fled in a different type of sports car. The driver, Jesse Kithcart, was indicted for being a felon in possession of a gun, which police discovered when they patted him down after his car was stopped. After a trial judge refused to suppress the search, Kithcart pleaded guilty but reserved his right to appeal.
“Armed with information that two black males driving a black sports car were believed to have committed three robberies in the area some relatively short time earlier,” the police officer “could not justifiably arrest any African-American man who happened to drive by in any type of black sports car,” Alito wrote. He said the trial judge had erred in concluding that the police had probable cause that extended to the weapons charge because Kithcart had not been involved in the robberies.
Alito and Lewis sent the case back to the trial judge for new hearings on whether the search was legal. The third judge in the case, Theodore A. McKee, said he would have gone even further.
“Just as this record fails to establish” that the officer “had probable cause to arrest any black male who happened to drive by in a black sports car, it also fails to establish reasonable suspicion to justify stopping any and all such cars that happened to contain a black male,” wrote Judge McKee. He said he would have thrown out the search without further proceedings.
Judge Edward R. Becker, former chief judge of the 3rd Circuit, said he also was surprised to see Alito labeled as a reliable conservative.
“I found him to be a guy who approached every case with an open mind. I never found him to have an agenda,” he said. “I suppose the best example of that is in the area of criminal procedure. He was a former U.S. attorney, but he never came to a case with a bias in favor of the prosecution. If there was an error in the trial, or a flawed search, he would vote to reverse,” Becker said.
Some of his former clerks say they were drawn to Alito because of his reputation as a careful judge who closely followed the text of the law.
Clark Lombardi, now a law professor at the University of Washington, became a clerk for Alito in 1999.
“I grew up in New York City, and I’m a political independent. But I liked Judge Alito because he was a judicial conservative, someone who believed in judicial restraint and was committed to textualism,” he said. “His approach leads to conservative results in some cases and progressive results in other cases. In my opinion, he is a fantastic jurist and a good guy.”
Some of Alito’s former Yale Law School classmates who describe themselves as Democrats say they expect they will not always agree with his rulings if he joins the Supreme Court. But they say he is the best they could have hoped for from among Bush’s potential nominees.
“Sam is very smart, and he is unquestionably conservative,” said Washington lawyer Mark I. Levy, who served in the Justice Department during the Carter and Clinton administrations. “But he is open-minded and fair. And he thinks about cases as a lawyer and a judge. He is really very different from [Justice Antonin] Scalia. If he is going to be like anyone on the court now, it will be John Roberts,” the new chief justice.
Joel Friedman teaches labor and employment law at Tulane University Law School, but is temporarily at the University of Pittsburgh because of Tulane’s shutdown following Hurricane Katrina.
“Ideology aside, I think he is a terrific guy, a terrific choice,” said Friedman, a Yale classmate of Alito’s. “He is not Harriet Miers; he has unimpeachable credentials. He may disagree with me on many legal issues -- I am a Democrat; I didn’t vote for Bush. I would not prefer any of the people Bush has appointed up until now.
“The question is, is this guy [Alito] going to be motivated by the end and find a means to get to the end, or is he going to reach an end through thoughtful analysis of all relevant factors? In my judgment, Sam will be the latter.”
Savage reported from Washington and Weinstein from Los Angeles.