Slate's Jurisprudence: Alito Confirmed, Enron Trial

Some Democratic senators tried a filibuster to stop it from happening, but Judge Samuel Alito was confirmed to the U.S. Supreme Court Tuesday in a 58-42 vote. Madeleine speaks with Slate legal analyst Dahlia Lithwick about the confirmation vote, and also about some of the legal proceedings in the case against two former Enron executives.

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ALEX CHADWICK, host:

First, the lead today, news from Capitol Hill.

Senator TED STEVENS (Republican, Alaska): On this vote, the ayes are 58, the nays are 42. The president's nomination of Samuel A. Alito, Jr. of New Jersey to be an Associate Justice of the Supreme Court of the United States is confirmed.

CHADWICK: And that makes Samuel Alito the 110th justice of the United States Supreme Court.

MADELEINE BRAND, host:

Joining us with her analysis of Samuel Alito's confirmation and other legal news is Dahlia Lithwick. She covers the Supreme Court for the online magazine Slate and for us here at Day to Day. Hi, Dahlia.

Ms. DAHLIA LITHWICK (Legal analyst, Slate): Hey, Madeleine.

BRAND: So after all this drama of the Alito nomination, he was confirmed without - without a lot of trouble, and in the end, the Democrats who opposed him did so primarily because of his conservative ideology. So what have we learned from this whole process?

Ms. LITHWICK: Well, I think we've learned a couple of things. I think we've kind of confirmed that judges are still not a voting matter, that senators are not really, really, I think, afraid that people vote based on who is going to be appointed a justice. It's just too attenuated.

And I think the other thing is what you said about ideology, that there's just no real shorthand for talking about ideology in political terms, and so we had a lot of sort of hand wringing by the Democrats about the state of Alito's heart and whether he was nice, and a lot of sort of chest thumping by the Republicans about his open mind and what a good guy he was and that he came up from an immigrant family.

BRAND: And do you see this as--is this the tipping point that conservatives have been looking for for the past, what, 20 years, for the Supreme Court?

Ms. LITHWICK: In some ways. I mean, certainly I think we're going to see a very, very dramatic shift to the right. I think you're not going to see it the way, you know, people expect it. There's not going to be sort of thunderclaps and biblical clouds. There's going to be just a very slow, inexorable shift to the right. And watch, Madeleine, for two things. Watch for subtle changes in the language of restraint, humility. Watch the court sort of slowly erase the sort of larger than life presence that it's had in the last couple of decades.

And I think the other thing to watch for is watch for the sort of centrality of Anthony Kennedy, who really will become the swing voter on the court. He's traditionally very conservative, sort of known for voting with the conservatives most often. But I think he has now become what Sandra Day O'Connor used to be, and it's going to become very, very interesting to watch the ebb and flow of his own jurisprudence over the coming years.

BRAND: Okay. And turning to another weighty legal issue, the Enron case, we have opening statements today in the trial of Kenneth Lay and Jeffrey Skilling, the two top executives there. Help us understand the scope of this trial. What are the issues at stake?

Ms. LITHWICK: It sort of feels like this trial has been going on forever, doesn't it?

BRAND: Yeah.

Ms. LITHWICK: There's already been books about it and documentaries and TV movies, and so you think, like, why are these guys not in jail yet? Skilling faces 31 counts of fraud, conspiracy, insider trading and lying to auditors. Lay faces 7 counts of fraud and conspiracy. There have been other suits around the margin, but this is in fact the criminal trial of these two key guys to see did they know what was going on, did they participate in what was going on, were they the sort of engineers and architects of this alleged fraud, or did they not know what was going on under their noses.

BRAND: And do we know what the various strategies will be for the defense and prosecution?

Ms. LITHWICK: Well, I mean, I think the prosecution's going to say, these were very, very smart, savvy guys, and this was an enormous operation. It's impossible for them not to have known very well what was going on. The defense arguments are - sound like they're shaping up to be, one, that the company actually was in basically financially sound shape until the last minute, and so there was really no fraud, because this was just something that sort of exploded at the last minute. I think they're also going to just do a lot of finger pointing and lay blame on accountants and lawyers and other people who they are going to say were in fact the real engine of the fraud here.

BRAND: And it seems we have a particularly no-nonsense judge at the helm. Tell us about him.

Ms. LITHWICK: Yeah, it was interesting. District Court Judge Sim Lake not only refused to change venue even though there were some fairly plausible arguments that it was going to be awfully hard for Skilling and Lay to get a fair trial in Houston, a town which some might, I think, generously say still really bears a grudge against Enron. Then he insisted on questioning all the jurors himself. He didn't let the attorneys do the questioning. And he just questioned them and seated a jury. Bing bang, he's ready to go. So he's just a kind of brass tacks guy, and I think that will be a really good fit for this trial.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the Supreme Court for the online magazine Slate and for us here at Day to Day. Thanks, Dahlia.

Ms. LITHWICK: My pleasure, Madeleine.

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