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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

Judge Samuel Alito appears before the Senate Judiciary Committee one week from today. He is President Bush's nominee to replace Supreme Court Justice Sandra Day O'Connor, who announced her retirement last year. Unlike John Roberts, who the Senate confirmed as chief justice last September, Samuel Alito arrives with a long paper trail. Over the past several weeks, thousands of pages of documents have been made public, including memos he wrote during his years in the Reagan administration and opinions he delivered as a federal appeals court judge. Legal analysts have been poring over these papers to try to figure out what kind of judge Samuel Alito is and what judicial philosophy he would bring to the Supreme Court, while senators try to figure out the questions that will uncover not just his views on war power, abortion or other hot-button issues, but how he thinks.

Later in the program, Melissa Castino Reid is on the TALK OF THE NATION opinion page this week. Her piece in the Minneapolis Star Tribune yesterday argued that after all those Christmas iPods this year, next year's hot technology gift could be hearing aids.

But first, Supreme Court nominee Samuel Alito. What question would you ask to explore how he thinks? What question do you think would get to how he would act, how he would approach toe law on the high court? Our number here in Washington is (800) 989-8255; that's (800) 989-TALK. Our e-mail address is totn@npr.org.

With us are two legal affairs experts who've been doing their share of poring over the recently released documents over the past few weeks. Neil Siegel is an assistant professor of law and political science at Duke University Law School. He's at the studios of Duke University News Service in Durham, North Carolina.

Nice to have you on the program.

Professor NEIL SIEGEL (Duke University Law School): Thanks for having me.

CONAN: And Stuart Taylor is here with us in Studio 3A. He's a columnist for National Journal who writes about the Supreme Court and constitutional issues, and also a contributor to Newsweek magazine.

Nice to have you with us. Happy new year to you both.

Mr. STUART TAYLOR (National Journal): And happy new year to both of you likewise.

CONAN: And let me begin with a question for you both. After reading all of this stuff--Judge Alito's opinions, his memos--are you able to get a sense of who the man is? What question would you ask him? And, Stuart Taylor, why don't we begin with you.

Mr. TAYLOR: I have a very positive sense of who the man is, but the question I would ask might sound otherwise. I would say, `Judge Alito, in 1985, you said very clearly that the Constitution does not protect a right to an abortion, and you wrote that you thought Roe vs. Wade should be overturned. Isn't it fair for us to assume that that's still what you think unless you tell us otherwise?

CONAN: Hmm. Do you think that he would actually answer that question?

Mr. TAYLOR: Well, he would give an answer, but I think the answer would go something like, `Well, Senator, as you know, nominees don't answer questions about their current views on hotly disputed issues. What I can tell you is that in 20--15 years as a judge, I've shown no particular agenda to overrule Roe vs. Wade. I was acting in a different capacity then as a lawyer for a client. I've had several abortion cases, and I've ruled for the pro-choice side in the majority of them. And what I believe 20 years ago about whether Roe vs. Wade should be overruled doesn't tell you too much about what I would think now since it's been repeatedly reaffirmed by the Supreme Court and has become more deeply embedded in American law than it was then.'

CONAN: And this is likely to be the subject of the very first questioner, who's going to be, of course, the chairman of the committee, and that's Senator Specter of Pennsylvania, who's quite interested in this question. And do you think he could come up with a question that would draw more of Alito's thinking about this other than getting the same-old, `Gee willikers, it's not fair to ask me about a question that might come up before the court?'

Mr. TAYLOR: Well, they'll come--Senator Specter and others will come at it many ways from many directions as they did with Judge Roberts. I think that Alito may have to show a little more leg on this than Roberts did because Roberts--although in my view, he had a pretty long paper trail--he was able to say--not always plausibly, in my view--`Well, Senator, that doesn't necessarily reflect what I thought then, let alone now, because I was an advocate for a client,' blah, blah, blah.

CONAN: Right.

Mr. TAYLOR: Well, Alito can't really say that about what he said in his 1985 job application. So he's going to have to acknowledge, you know, `That's what I thought then,' which makes it a little harder to say, `But I'm not going to tell you what I think now.'

CONAN: Neil Siegel, what question would you have for Judge Alito?

Prof. SIEGEL: Well, I don't know that I would have just one, but I would try to get him...

CONAN: All right. What's the first question then?

Prof. SIEGEL: Yeah. I would try to get him to focus on past Supreme Court decisions and to tell the world what he thinks about the court's reasoning in those decisions. So, for example, I don't know that I would ask him about abortion writ large in general because it's very easy not to answer such questions. I would ask him about the court's decision in 1992 in Planned Parenthood against Casey, ask him if he agreed with the plurality's decision, which included Justice O'Connor, in which the court, on the one hand, declined to overrule Roe vs. Wade, reaffirmed the core of its holding, but on the other hand, significantly cut back on the scope of abortion rights in the country, allowed government to regulate abortion in ways in which it hadn't previously. And the court did this largely on grounds of stare decisis, so we'd get a sense of his views on abortion, essentially his views on...

CONAN: Stare decisis, for those of us who weren't glued to the Roberts hearings as many of us talking right now were...

Prof. SIEGEL: That's right. Sorry about that.

CONAN: ...that means respect for precedent.

Prof. SIEGEL: That's right, what the court has previously done. What's the scope of one's respect for previous decisions? And again, it's very difficult to get a meaningful response when you ask about precedent in general, because everyone agrees that precedent's really important except when it's not. And so you need to focus on specific cases in which the court deferred to precedent and whether one agrees with the court's deference in that particular instance.

CONAN: Mm-hmm. And how would this get to--you know, stare decisis, again--that might give you some assurance on Roe vs. Wade if he answered it the right way, depending on which way you feel about Roe vs. Wade, but how does it get to his judicial philosophy? Do you think he's an incrementalist, someone who looks at each case, or does he have an agenda? Does he have an ideology he's trying to apply?

Prof. SIEGEL: Well, I think it's much larger than abortion. I think since 1995, Justice O'Connor has been in the majority in a staggering 77 percent of cases in which the court was divided 5-4.

CONAN: Mm-hmm.

Prof. SIEGEL: And so it's just about abortion; it's about affirmative action, campaign finance reform, religion, the death penalty, criminal defendants' rights, congressional enforcement of the 14th Amendment. And I think it's pretty clear to me from reviewing his record how Judge Alito personally feels about many of those issues. What he said in his job application has been vindicated in his record as a judge, which he's a strong judicial conservative. The question is whether his personal views are going to be paramount or his respect for what the court has previously decided is going to be paramount.

I don't feel comfortable calling anyone an ideologue or having an agenda. No judge thinks that he or she is an ideologue with an agenda. I don't get the sense that he's an incrementalist. I also don't get the sense that's not an incrementalist. I do get a very strong sense that he's significantly more conservative than Justice O'Connor and that, if he is confirmed, the court will move substantially to the right. Now whether that means he will immediately vote to overrule Roe, like Justice Thomas did, or whether he will engage in a series of decisions undermining Roe in which Roe is still technically there, but it gets limited to the point of irrelevance; that's not clear to me from his record. I'm not also sure that in five or 10 years' time it makes much practical difference.

CONAN: We want to hear from you what questions you would hope to hear posed to Judge Alito at next week's hearings. What question do you think would elicit the issue or the philosophy that you're interested in? (800) 989-8255; (800) 989-TALK. Our e-mail address is totn@npr.org.

Let's start with Michael. Michael's calling us from Grand Rapids in Michigan.

MICHAEL (Caller): Hi.

CONAN: Hi.

MICHAEL: I'm calling from a car phone, so I'll be quick about this. I am curious about the 2000 election. The Supreme Court's involvement was very controversial, and I'd like to know if Judge Alito felt that the Supreme Court overstepped its bounds by involving themselves in that or if he agrees with the American Bar Association. Thank you very much.

CONAN: Thanks for the call. And, Stuart Taylor, what would that elicit, do you think?

Mr. TAYLOR: I think it'd be a very good question, but like most very good questions, it would elicit an answer that says, `Well, Senator, that's a very recent case. If I were to...'

CONAN: But it's not going to come back.

Mr. TAYLOR: `Well--but if I were to criticize anybody's position in that case, I'd be making--you know, I'd be insulting people who would seen to be my colleagues. So I think I'll duck that one.'

And I might throw in--somebody wrote a little ditty about how Roberts handled a lot of questions, and the gist of it was: `What would you do about the current crisis?' `Senator, all I can say is "Stare decisis."'

(Soundbite of laughter)

Mr. TAYLOR: Now stare decisis, as you point out, Neal, wouldn't work with Bush vs. Gore 'cause it's not a case that's likely to come up again, but I think he'd find a way to avoid--more for political reasons, frankly, than for any real reason of propriety--I think he'll find ways to avoid taking that one head-on.

CONAN: Neil Siegel, what would we learn?

Prof. SIEGEL: You know, I think it's funny because I do believe Judge Roberts was asked that, and he declined to answer, I think, largely for the reasons Mr. Taylor offers. If any case is unlikely to come back, the court seemed to make it overwhelmingly likely that such a case wouldn't come back.

I'm also, frankly, not sure we would learn a lot. I teach Bush vs. Gore, and I ask the students in my class two questions. First, I ask, `Do you think it was rightly decided?' and then I ask, `Who'd you vote for in the 2000 election?' and it's amazing the degree of overlap. One can predict how one feels about Bush vs. Gore depending on who one supported. So it's an extraordinary case in which people felt passionately about on the court, beyond the court, and I'm not sure we could learn anything distinctive about Judge Alito from pursuing Bush vs. Gore.

Mr. TAYLOR: Can I take a cut at mind reading?

CONAN: Sure.

Mr. TAYLOR: If I had to guess what Alito would say if he was answering that question honestly--and it is guess...

CONAN: Mm-hmm.

Mr. TAYLOR: ...based on my general sense of his approach to issues--`It would have been better if the court could have avoided a 5-4 decision that broke along ideological lines determining who the next president would have been. If I had been on the court, I would have tried to find a way to avoid that very ugly result.'

CONAN: Mm-hmm. It's interesting just on that point, Neil Siegel--I mean, there was as lot of talk during the Roberts hearings--particularly, of course, he was up for chief justice. But how do you bring about consensus? How do you avoid so many 5-4 narrow decisions on the court? And essentially, that's the question that's been posed.

Prof. SIEGEL: No, I think that's right. And I think that Mr. Taylor just offered one of the best possible responses to the Bush vs. Gore issue, which I think--the absolute worst-case scenario was an ideological split, 5-4, partisan lines, the court deciding the presidency, and if it would have been at all possible to avoid that result. And there's some talk that the court came close and then the compromise broke down.

I think there are limits to which any one justice can bring about consensus. There's a number of cases you don't hear about during confirmation hearings in which the court achieves that result, in which they don't split 5-4. On some of the most controversial ones, it's just impossible.

CONAN: Our guests are Neil Siegel, an assistant professor of law and political science at Duke University Law School, and Stuart Taylor, a columnist for the National Journal. He's also a contributor to Newsweek magazine. If you'd like to join our conversation about the questions you'd like to see put to Judge Sam Alito when he goes before the Senate Judiciary Committee next week, give us a call: (800) 989-8255; (800) 989-TALK. The e-mail address: totn@npr.org.

I'm Neal Conan. We're back after a break. This is TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

We're talking today about Judge Samuel Alito and the questions he's going to be hearing next week when he faces the Senate Judiciary Committee. Our guests are Neil Siegel, an assistant professor of law and political science at Duke University Law School, and Stuart Taylor of National Journal. Of course, you're invited to join us, (800) 989-8255. Or you can send us questions by e-mail: totn@npr.org.

And let's get another caller on the line. This is Hank. Hank's calling us from Oakland, California.

HANK (Caller): Oh, hi. I'm concerned about church-state issues and if Judge Alito would really consider there to be a strict wall between church and state. And my concern is that he might come up against an edict from the pope similar to what happened to John Kerry last year about not taking Communion, and it might even come up before a decision is made.

CONAN: Mm-hmm.

HANK: Address that.

CONAN: Neil Siegel, this is an issue where Judge Alito seems to be, at least according to some analysts, at variance with many of the federal judges.

Prof. SIEGEL: I do think a defining aspect of his personal views before becoming a judge and his jurisprudence is not believing in a strict wall of separation between church and strait--church and state. I'm not concerned about edicts from the pope and the extent to which religion will inappropriately affect his jurisprudence. I think he has clearly stated views. On his job application in '85, he said he has a disagreement--a strong disagreement, he says--with some core Warren court decisions dealing with church-state separation involving school prayer. These have become regarded as bedrock in constitutional law. There haven't been challenges to the court's school prayer decisions. He said then he has a problem with them, and as a federal appeals court judge, I can't think of a single instance in which he voted against a claim for either symbolic displays of religion, government funding of religion or the free exercise of religion.

And I think the court is closely divided. Justice O'Connor is the difference between the court overruling Warren court-era precedents protecting church-state separation and a significant shift in the court to the right. So again, this is an area in which reasonable people disagree about what the law should be, but I don't think there's much of a reasonable disagreement to be had about what the impact of Judge Alito will be in the area of church-state separation.

CONAN: Mm-hmm.

Prof. SIEGEL: Which is not to say he's going to revisit all the Warren court-era precedents, but I do think, for example, these Ten Commandments cases, the one that found the violation last term, comes out differently if Judge Alito is on the court and not Justice O'Connor.

CONAN: Yep. Wasn't Justice O'Connor in the majority on both those opinions, Stuart Taylor?

Mr. TAYLOR: She was. And interestingly enough, Justice Breyer, a Democratic Clinton appointee, was in favor of upholding the Ten Commandments display on the grounds of the Texas Capitol. Actually, Justice O'Connor was not in the majority on both decisions.

Prof. SIEGEL: That's correct. She--no...

CONAN: Oh, I'm sorry.

Prof. SIEGEL: She was in dissent in the Texas case.

CONAN: Mm-hmm.

Mr. TAYLOR: The one who--there were two 5-4 decisions. In the Texas case, they upheld the Ten Commandment monument.

CONAN: Mm-hmm.

Mr. TAYLOR: In the Tennessee case, they struck down some plaques on walls and they gave reasons for...

Prof. SIEGEL: The Kentucky case.

CONAN: Yeah.

Mr. TAYLOR: I'm sorry. Thank you.

Prof. SIEGEL: Right.

Mr. TAYLOR: And it was Justice Breyer who broke ranks with the liberals and upheld the Ten Commandments display in the Kentucky case.

I think those cases point to a couple of significant aspects here. First, I don't think--unless I missed something--that he's ever directly challenged the correctness of the basic school prayer cases of the early '60s. He has certainly, in '85, criticized the Warren court for going too far in the direction of a wall of separation, but that's hardly an eccentric view. And the view that the Supreme Court's jurisprudence in this area is incoherent, unpredictable and lamentably lack--unprincipled is very widespread among liberal and conservative scholars alike. So if somebody can bring a little bit of common sense to that area, it wouldn't be a bad thing in my view.

CONAN: Hmm. Hank, thanks very much for the call.

HANK: Thank you.

CONAN: Let's go now to Robert. Robert's calling from Sacramento.

ROBERT (Caller): Happy new year.

CONAN: Happy new year to you, Robert.

ROBERT: I have what I consider to be--I teach government and politics to college students and high school students, and we always have an interesting discussion when we come to the Constitution about the various amendments. And I'm very inter--the issue of stare decisis is moot to me because if that was true, then we'd still have Dred Scott not Brown v. the Board of Education.

But here's my question for Judge Alito, and I will take your two experts' comments off the air.

CONAN: Mm-hmm.

ROBERT: I'd like to ask him what his understanding of the Ninth Amendment to the Constitution is, which says specifically, `The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.' It's a real good question, I think, because it doesn't go to philosophy; it goes to his understanding of unknown rights, like the right to privacy, which is well settled in the constitutional law from cases in the 19th century...

CONAN: Mm-hmm.

ROBERT: ...which led to Roe v. Wade. I'll take your comment off the air. Thank you.

CONAN: OK, Robert. Thanks for the call and appreciate it. And the--what he's talking about, the right to privacy, isn't unknown, but it is not specifically mentioned in the Constitution. Why don't you take the first crack at that, Stuart Taylor?

Mr. TAYLOR: Well, I imagine that as to the Ninth Amendment that he will avoid saying what Judge Bork said in 1987, which is that it's so mysterious that it's like an ink blot. That was not a helpful answer.

Prof. SIEGEL: It was a Rorschach test.

Mr. TAYLOR: I think what he will say is that no decision in the history of the Supreme Court on any issue has ever been based on the Ninth Amendment and, therefore, whatever it means, it clearly doesn't mean enough to have had any influence on the outcome of any Supreme Court cases.

CONAN: Mm-hmm. But if he gets to the issue of privacy in general, Neil Siegel, wouldn't that approach be more on the question precedent of the Griswold vs. Connecticut, the case that sort of established that right and underpinned Roe vs. Wade?

Prof. SIEGEL: Yes, except I think Mr. Taylor is right that the way Griswold and other privacy cases have come to be understood, despite what Justice Douglas wrote in Griswold, is really a substantiative due process decision, privacy protected by the due process clause of the 14th Amendment. I don't think one could argue that a particular right is grounded in the Ninth Amendment because the Ninth Amendment, by its terms, doesn't protect any rights. What the Ninth Amendment does is exclude a--certain arguments that conservatives tend to make, which is, `If you don't see it in the text of the Constitution, it can't be constitutionally protected.' The Ninth Amendment says, `That's not an admissible argument. The fact that we're listing all these rights doesn't mean that we mean to exclude other rights that aren't listed.' So I don't think the Ninth Amendment by itself defines or protects rights, but it does exclude certain arguments against the protection of rights.

CONAN: Here's an e-mail question from Larry: `How does he view the commerce clause as it applies to the rise of congressional power since the 1930s? How would he vote to restore the pre-1930s view of congressional power, a la original intent analysis, or would he continue the post-1930s arrogation of power by Congress?' And this is certain to come up, Stuart Taylor.

Mr. TAYLOR: Yeah. One of the most criticized decisions that Judge Alito has brought down is one in which he read the Supreme Court's 1976 or--no, I'm sorry, 1995 Lopez decision as invalidating a federal law on possession of machine guns. There's been a lot of misrepresentation of what he said in that case. He basically said, `This is an easy problem. Congress can fix it if it wants to ban machine guns, but they didn't do it right.'

CONAN: Mm-hmm.

Mr. TAYLOR: But some have seen that opinion suggesting he's inclined to take a broad view of states' rights and a correspondingly narrow view of federal power. I read that decision more as a faithful application of what the Supreme Court had done 18 months previously in Lopez, but that's an issue about which you'll see a lot of argumentation and disagreement.

CONAN: Mm-hmm. And, Neil Siegel?

Prof. SIEGEL: Yeah. I read it a little differently than Mr. Taylor, though not as a much of a sign of impending disaster as maybe some liberal critics have judged Alito. I think he went further than anyone on the Rehnquist court except Justice Thomas has gone in restricting Congress' power under the commerce clause in that machine gun case, the sentence in which he says, `Congress can't regulate the possession of machine guns.' I don't think he's gone as far as the pre-New Deal court or Justice Thomas would go in saying Congress is limited to regulating exchange or trade, not manufacturing or production. But I don't think it's a good faith application of Lopez, and every circuit court, including his own, that's decided the issue has come out the other way.

CONAN: Mm-hmm. Let's get to another caller. This is David. David's calling us from Iowa City.

DAVID (Caller): Yes, thanks for taking my call.

CONAN: Sure.

DAVID: I'm interested in how Judge Alito would understand the limits of executive authority and, incidentally, his understanding of strict construction of the Constitution.

CONAN: Well, one at a time there. Those are both big questions.

DAVID: Well, in this case, I think they're related, given the recent experience and our recent discovery of NSA policy on wiretapping.

CONAN: And, Neil Siegel, given those revelations over the past few weeks, David's right; this is a question that is also certain to come up.

Prof. SIEGEL: Yeah.

DAVID: And so the question I'd like to put is whether Judge Alito can recall any case where he ruled against presidential authority or federal executive authority, and where he sees and understands its limits.

CONAN: Exactly what kind of answer do you think that would evoke, Neil Siegel?

Prof. SIEGEL: I don't know that any single federal judge has had many occasion, certainly pre-9/11, to decide cases of presidential power or presidential authority. So I don't know that. Looking to his record in this instance that narrowly is going to be helpful. He does--the one consistent them in his decision-making is very strong deference to the exercise of government power. Usually, it has to do with prosecutors in criminal cases, not in executive power `war on terror'-type cases. My instincts tell me that he's going to be very deferential to the president. My guess would be that that's the single most important quality in a judge that the current president has is deference to the executive in the war on terror.

So if you're concerned about the wiretapping, if you're concerned about detaining US citizens as enemy combatants--Justice O'Connor says a state of war is not a blank check for the president. I don't think you'll get such a statement from Judge Alito. But I can't really point to specific evidence beyond the job application in which he talks about effective law enforcement's strong defense. Right? He's not talking about the other values on the other side of the ledger.

CONAN: Mm-hmm. Stuart Taylor.

Mr. TAYLOR: Well, I hope and believe--although the evidence is not very compelling either way--that he would agree wholeheartedly with what Justice O'Connor said in the Hamdi case, as just quoted, that "a state of war is not a blank check for presidential authority." By the way, eight justices of the Supreme Court agreed with that, including Justices Scalia and Chief Justice Rehnquist.

Alito, I think, has not got a record that tells us very much on where he stands on executive authority, unless you want to go all the way back until he was a student at Princeton University, in which he was part of a student effort that produced a very strong argument for protections of right to privacy and limitations on unilateral presidential powers in matters like wiretapping.

CONAN: Mm-hmm.

Mr. TAYLOR: Now does he still believe that? Who knows. The one case that's got...

CONAN: Possibly a youthful indiscretion.

Mr. TAYLOR: Yeah. The one case that's gotten a lot of noise, a front-page story in The Washington Post and so forth...

CONAN: Mm-hmm.

Mr. TAYLOR: ...as suggesting huge deference to executive authority, I think shows nothing of the kind. That was a case in which he was an assistant solicitor general in the early '80s. He said in passing that the attorney general--John Mitchell, in this case--should not be subject to any civil damage lawsuits for his own illegal actions. That position, I think, was exactly the same position the Carter administration has taken and the position that anybody working in that office would take. And, therefore, I don't think it shows that he is particularly strong on executive authority as has been widely argued.

CONAN: We're pondering questions for Judge Samuel Alito, who faces the Senate Judiciary Committee one week from today.

You're listening to TALK OF THE NATION from NPR News.

One of the areas in which Judge Alito has written a lot of opinions is on criminal law and on the use of the death penalty. And, Neil Siegel, are there questions here that could bring out, you know, examples of how he thinks?

Prof. SIEGEL: I think there are certainly good questions that could be posed. and again, I would want to focus on past Supreme Court decisions in which we know what all the other current justices think.

CONAN: Mm-hmm.

Prof. SIEGEL: Why can't we know what Judge Alito thinks and get him to talk about the reasoning in those cases? I'm not optimistic that he's going to be prepared or willing to answer those questions. I think the more he--nominees only answer such questions if they think need to. To earn confirmation, and it's not very hard for Judge Alito to count to 50, which is all he needs to do short of a filibuster.

But I'm not optimistic that he'll answer the questions, but I would want to know--for example, last term, Justice O'Connor was the decisive vote in which the court found ineffective assistance of counsel in a capital case, in a death case. Right? What does he think of that decision? Why is it that in his very long judicial record it seems almost impossible--not impossible, but almost impossible for a criminal defendant to make an argument that he ends up agreeing with? As The Post said yesterday in an article canvassing his opinions, even compared to Republican judges--Right?--he's to the right of them in terms of the frequency with which he agrees with a criminal defendant. I mean, Justice O'Connor was no friend of criminal defendants, but when the government went too far, she was prepared to step in, like the ineffective assistance of counsel in death penalty cases.

CONAN: Stuart Taylor.

Mr. TAYLOR: It would be a very interesting question to get him to answer, and I'm afraid he won't answer it. And I think two things are worth pointing out. One, Justice O'Connor has become more liberal on issues like that over the years. I recall a blood-curdling decision involving a man who may have been innocent--probably not, but possibly--being sent to his death, and Justice O'Connor wrote an opinion upholding--throwing out his appeal on the ground that his lawyer had been one day late in filing something in state appellate court. And she began that opinion with the words, `This is a case about federalism.' Now if Alito had ever done anything like that, people would be screaming from the mountaintops that he was intolerable.

Now as to The Post piece, I think it's possible to draw statistical conclusions from a judge's record, but it's hazardous to do it when the sample size is low. The Post made a big deal about how hard he was on death penalty defendants, and then I looked at how many cases are they taking about where he voted against death penalty defendants and the answer was four. Well, I don't think four is a statistically significant sampling that tells you whether he's really going to be tough for--you know, maybe they were four lousy cases and maybe he was real conservative on death penalty defendants. You need to know more to know the answer to that.

CONAN: We just have a couple...

Prof. SIEGEL: I think that's right.

CONAN: We just have a couple of minutes left. And one final question I'd like to ask you--as you correctly say, Stuart Taylor, he's only likely to answer the questions he thinks he needs to answer in order to win confirmation from a majority on the committee and then 51 votes on the floor, barring a filibuster. How do we believe him? I mean, Clarence Thomas testified before the committee and came across, aside from all the Anita Hill stuff, as explaining himself as a mainstream conservative and has not proven to be that once he got on the Supreme Court. So how--is he going to face tough enough questions, do you think, that we will know what he's like by the time the grilling is over? I'm afraid just a few seconds for both of you, but, Neil Siegel, why don't you go first?

Prof. SIEGEL: I don't think it's likely to be successful. The only way I can think of to change the process going forward is a bipartisan consensus before we know who the president is and who the nominee is, that nominees will not be confirmed until they answer substantive questions about past cases and constitutional law.

CONAN: OK. Stuart Taylor.

Mr. TAYLOR: I think all you learn from a confirmation hearing is how skillful an advocate for himself the nominee is. The way to really understand what Judge Alito's all about, I think, is to hear from people who know him well and especially people are liberal or moderate and don't come from sort of Bush administration background. And will be some testifying as witnesses; I hope there will be a lot testifying as witnesses. Everything I've heard from people like that has been very positive.

CONAN: That usually is the last day of the hearings, or at least following the precedent, stare decisis, of the Roberts hearings, that's the way it went last time. So we'll see that, I guess, a week from Friday if the schedule holds.

Thanks to both of our guests, Neil Siegel at Duke University Law School and Stuart Taylor, a columnist for the National Journal. Appreciate it.

Mr. TAYLOR: Thank you.

Prof. SIEGEL: Great to be with you.

CONAN: When we come back, it's the TALK OF THE NATION opinion page segment. I'm Neal Conan. This is NPR News.

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