Bush Makes Third Nomination to High Court President Bush nominates Samuel Alito to fill retiring Justice Sandra Day O'Connor's seat on the United States Supreme Court. Alito has served 15 years on the Third U.S. Circuit Court of Appeals in Philadelphia. And he has a track record on that court that so far seems to please conservatives.
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Bush Makes Third Nomination to High Court

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Bush Makes Third Nomination to High Court


Bush Makes Third Nomination to High Court

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From NPR News in Washington, this is SPECIAL COVERAGE. I'm Neal Conan.

This morning, President Bush nominated Samuel Alito to the United States Supreme Court. Judge Alito is very different from Mr. Bush's previous choice to replace Sandra Day O'Connor. Last Thursday, Harriet Miers was forced to withdraw under withering criticism, especially from the right wing of the Republican Party. In Miers, the president named a woman with no judicial experience. By contrast, Samuel Alito has served 15 years on the 3rd US Circuit Court of Appeals in Philadelphia. Before he was appointed to the federal bench by the first President Bush, Alito worked in the Justice Department, argued cases before the Supreme Court as deputy solicitor general and served as US attorney, the chief federal prosecutor in New Jersey.

Again, unlike Harriet Miers, Judge Alito has a long track record on constitutional issues. So far, at least, most conservatives are pleased, while liberal response ranges from caution to outright opposition. Joining us now to discuss the nomination and what it means for the court and for politics are David Savage, who covers Supreme Court for the Los Angeles Times. Thanks for coming in, David.

Mr. DAVID SAVAGE (Los Angeles Times): Hi, Neal.

CONAN: Also with us here in Studio 3A is NPR's political correspondent Mara Liasson. Mara, good to talk to you again.

MARA LIASSON (NPR News): Good to be here.

CONAN: David let's start with you. What do we know about Judge Alito?

Mr. SAVAGE: Well, the first thing Judge Alito has to get over is his nickname. He's known as "Scalito." Some people have used this name to say he's a lot like Antonin Scalia in background and style. He's a conservative, has an Italian American heritage. I actually think he will be able to get beyond that because if you read his opinions or follow sort of what he's said, he's a much more judicious person than Scalia. He's not a wise guy. He doesn't have a lot of sort of derisive comments about arguments he disagrees with. I spent a lot of time reading opinions of his yesterday, and he strikes me as a very, very good judge, a very judicious person.

CONAN: If President Bush was looking for somebody who could unite conservatives and maybe spilt away a few Democrats as well, maybe Samuel Alito is his man?

Mr. SAVAGE: Certainly on the first, not clear on the second. That is, certainly he will unite conservatives. They're all back in the fold and ready to support him, very happy with this nomination. He'd been on their short list for a long time. I think it's unclear about Democrats and liberals. There's a lot of opposition right away. They seem ready to fight on the other side. And we're really just beginning in this process. This guy has a lot of opinions, 300-and-some opinions. We'll learn a lot about him over the next couple weeks, and we'll see just how strong the--you know, what kind of fight the Democrats can put up.

CONAN: And I guess that's the question to you, Mara Liasson. Political reaction: pleasure on the right; well, caution, if not outright pain, on the left.

LIASSON: Yeah. There's no doubt about this. I mean, I feel like the Democrats have woken up from this very pleasant daydream were they watched the Republicans form a circular firing squad and now they're back to where they were before, where they have somebody much like Roberts in terms of his credentials and his abilities...

CONAN: John Roberts, who was just confirmed.

LIASSON: John Roberts, who was just confirmed, his legal qualifications only more so, because he's been on the bench for a long time. And I think that the Democrats--he will guaranteed as a baseline get more no votes than Roberts did, but the question is, as you said, can Democrats either peel away some moderate Republicans to vote no or get enough of those moderate to conservative Democrats who are part of the Gang of 14 who were promised to vote--not to filibuster, get them to change their minds and declare an extraordinary circumstance in the case of Sam Alito and vote for a filibuster. I think that's going to be tough. One thing that's different with this nominee, different than Roberts, certainly different than Miers, is he's not a man of mystery. We're not going to have to look to speeches he gave, I don't think. I mean, maybe David differs, but I don't think we're going to have to plumb writings or speeches or any kind of obscure statements of his. He's got 15 years of decisions, and some of them are on the hot-button issues, and I think people will not have to talk about what kind of person he is or what kind of church he goes to or anything like that. They're going to know how conservative he is.

CONAN: And that raises the question of, well, is that track record a little too long? As you said, David Savage, it's going to be quite some time before people get a chance to go back through the whole record, but, well, we remember the case of Robert Bork, whose record on a lot of controversial issues was, it turned out, too controversial.

Mr. SAVAGE: Well, Bork was the kind of guy who said things and gave speeches and wrote articles and wrote OP-ED pieces and took really strong opinions. I disagree with Mara in part, is that this guy has a very long record of decisions, but he writes decisions as a lower court judge, and they are sort of attempts to discern what the Supreme Court meant on some hard issue, and he sort of--he writes his opinions as a judge trying to apply the law, and you don't get from many of them what Sam Alito thinks. There's not a lot of sort of strong opinions of his in his opinions. They are sort of a judge's attempt to apply the law as he understands it.

CONAN: Well, give us a for instance, particularly in the case of where he was part of the court ruling on the decision about spousal permission for abortion.

Mr. SAVAGE: Yes. This is the one that'll be talked about a lot, Neal, is Planned Parenthood vs. Casey. The situation is that in 1989, the Supreme Court was closely split on abortion. Justice O'Connor had the deciding middle vote, and she said states can regulate abortion so long as they do not put an undue burden on the woman's right to get an abortion. And she said an undue burden is something like an absolute obstacle or a barrier. Pennsylvania then passed some very stringent abortion regulations w...

CONAN: Casey, then the governor of Pennsylvania.

Mr. SAVAGE: Yes. And then the question when it came to the 3rd Circuit, where Sam Alito said, `Are these regulations constitutional?' and one of them was that in almost all instances, the woman had to say she notified her spouse, unless there was some fear of violence or abuse or something like that. The two judges in the majority struck that down and said, `That goes too far. That puts an undue burden. That's really going to block some women from having abortions.' Sam Alito wrote a dissent and said, `From what I can tell, Justice O'Connor's view is that it's OK to regulate abortion as long as there's not a barrier.' He cited a series of opinions where she had upheld parental notification requirements as not posing an undue burden. So he thought this wasn't an undue burden. Now I think a lot of women, including Justice O'Connor, are sort of insulted by the notion of a state law that says a wife is sort of compelled to notify her husband and...

CONAN: It smacks of getting the husband's permission.

Mr. SAVAGE: Yes, that's right. And in the end, Justice O'Connor and the Supreme Court struck down that provision. So Alito's opinion is--I think will be controversial for that reason.

CONAN: But I think then Chief Justice Rehnquist cited Justice Alito's opinion in his dissent from the Supreme Court decision, and he's going to be portrayed--the reason this is coming up so intently, Mara, is that Sandra Day O'Connor, as Dave was saying--she was the swing vote...


CONAN: ...not just on abortion but on other issues as well, and these decisions are absolutely vital to the political base of both political parties.

LIASSON: That's right. And, you know what's interesting--OK, David certainly corrected me, and I stand corrected in that because he was an appellate judge, he wasn't writing his own opinion. He's applying Supreme Court law. But what's interesting here up until now, you've had two candidates, in varying degrees were stealth candidates. Roberts was a bit of a stealth candidate. Miers was the, you know, class A stealth candidate. But you now have conservatives openly--and I think on our air this morning, you had Jay Sekulow saying he will move the court to the right. I mean, this is--conservatives are absolutely up-front about this. This is what they wanted. They didn't want to pussyfoot around, make apologies for being in the Federalist Society. `You know, what's embarrassing about being conservative?' all these people said. Now they've got somebody who is clear in the mold of Scalia. His nickname is "Scalito." And I think that that makes this debate crystal clear.

This is a person who isn't being sold as somebody in the mold of Sandra Day O'Connor, despite all the nice words he might have had to say about her. This is somebody who will move the balance of power on the court to the right, and that, I think, is going to make it easier for Democrats to mount an opposition. I don't know if they can succeed. Easier to mount an opposition; a little bit harder for the president to sell Alito to the public at large as someone who's--you know, who could go either way on some of these decisions. And I think that because of the Miers debacle, it makes it even harder than if Alito had been his first choice.

CONAN: Yet, the president, as conservatives will say, ran for re-election promising...

LIASSON: That's right.

CONAN: ...to appoint justices in the--along the lines of Scalia and Thomas.

LIASSON: And the difference is, is when he was running and saying those kinds of things or saying the various euphemisms that you use for when you talk about judges, it was--he would say them in certain places to certain audiences, and those claims weren't in his campaign commercials or in his speech at the convention, I don't think. I might be wrong. But the point is those concerns, those kinds--that claim to say that he's going to promote people like Scalia and Thomas, those only meant something to the activists that care about the Supreme Court, until now when it really matters. You know, this is the kind of court fight that the public could pay attention to and care about.

CONAN: When John Roberts' name came up for nomination before the Senate Judiciary Committee and then the full Senate, the Democrats split 22-to-22; 22 in favor, 22 against.

LIASSON: Yeah. That won't happen again.

CONAN: A lot of people thought liberal interest groups gave Democratic senators a free ride, saying, `Look, Roberts for Rehnquist, it's a wash. We'll care about your vote next time.'

LIASSON: Yeah. There's no doubt about that, that they're expecting a lot more Democratic opposition. How unified the Democrats can be is a big question. Will they mount a filibuster and will it come to the showdown...

CONAN: The...

LIASSON: ...over the filibuster that we walked up to the brink of and then stepped from just a couple months ago, I guess?

CONAN: Well, I guess it was last spring, but it seems like...

LIASSON: Last spring, yeah, yeah.

CONAN: ...a long time ago...


CONAN: ...when the Gang of 14 was formed, seven Democrats, seven Republicans...


CONAN: ...who said, `Unless there are extraordinary circumstances, we agree that there will be no filibusters.' They control enough votes to make sure one way or the other. And it remains to be seen whether that coalition will survive this particular test. And the other thing that people are going to be looking at, David Savage, as you mentioned, there's a long record to go back and look at. The president says he wants confirmation hearings by the end of the year. Senate Judiciary Committee says, `Oh, come on, January.'

Mr. SAVAGE: Yeah. This seems to me there's a good argument for taking their time and looking through a lot of his opinions, because this fight, I think, will turn on his sort of opinions. You know, the easy way, if you're a Democrat, to defeat a Republican nominee would be to say, A, the nominee is not qualified, doesn't have the qualifications to be on the Supreme Court. Harriet Miers fit that category. B, there's the sort of Robert Bork or Clarence Thomas or, to some, Janice Rogers Brown, a person who has made a series of inflammatory speeches or statements that would sort of set people off. Janice Rogers Brown talks about 1937 as the year that socialism has arrived in amer--this guy I don't think is either one of those. So if he's going to be defeated, it's going to have to be on a series of opinions that Democrats can say these--you put them altogether, and they're too far right.

CONAN: But basically on the timing of the hearings, Democrats will want as long as possible to do as much research as possible.

Mr. SAVAGE: Yes.

CONAN: Republicans will want it as quickly as possible?

Mr. SAVAGE: Yes. Bill Frist, when they first came up this morning, said we--basically, `We need to move fast on this.'

CONAN: Thank you very much, David Savage, who covers the Supreme Court for the Los Angeles Times, and Mara Liasson, NPR's political correspondent. They were both with us here in Studio 3A.

When we come back from a short break, more about Samuel Allyoto's c--Alito's--excuse me--career as a lawyer and as a judge.

I'm Neal Conan. Back after this break. This is SPECIAL COVERAGE from NPR News.

(Soundbite of music)

CONAN: This is SPECIAL COVERAGE from NPR News. I'm Neal Conan in Washington.

When President Bush nominated Judge Samuel Alito for a seat on the Supreme Court earlier today, he emphasized Alito's judicial experience, an obvious contrast with former nominee Harriet Miers. Senate Majority Leader Bill Frist, appearing at a news conference with Judge Alito, said, `It had long been in the cards.' Frist pointed to a Princeton yearbook, which said Alito intended one day--excuse me. The Princeton yearbook said Alito intended one day to warm a seat on the high court. For his part, Judge Alito said he hadn't been serious about the Supreme Court when he filled out that yearbook form.

Judge SAMUEL ALITO (Supreme Court Nominee): Well, that was a college joke. I think my real ambition at the time was to be the commissioner of baseball, and I probably should have put that down. And, of course, I never dreamed that this day would actually arrive.

CONAN: Judge Alito's roots run deep in the state of New Jersey, which baseball fans will note has no major-league team of its own. He was born in the capital, Trenton, and before serving on the 3rd Circuit Court of Appeals, he was US attorney for the state of New Jersey. Kate Coscarelli is a legal reporter for the Newark Star-Ledger. She profiled Alito for the Ledger in May. She joins us now by phone from her office in Newark, New Jersey. Thanks very much for being with us today.

Ms. KATE COSCARELLI (Newark Star-Ledger): Thank you for having me.

CONAN: When you spoke with Judge Alito in May, what was he like, just an interview?

Ms. COSCARELLI: Just as an interview, he's a nice guy, you know. I mean, he has quite a reputation for being very quiet. Monastic is sort of the term that most of the people who have worked with him used right after they use the word `brilliant' about him. But when you're sitting there, you've got this great old chambers with, you know, all this wood paneling. And he didn't sit behind his desk. He sat there in an armchair right next to me. You know, he was very affable, you know, made some, you know, funny remarks and, you know, very, very casual, didn't have int--certainly didn't wear his robes, nothing pretentious like that about him.

CONAN: Did you discuss judicial philosophy with him?

Ms. COSCARELLI: We did. We did discuss it a bit. You know, I said I--you know, I was talking to him and I said, you know, `You have these reputation--you know, sort of a conservative reputation nicknames, "Scalito," "Little Nino"(ph) and some of those.' And he--and I said, `And, you know, you have this real, you know, reputation as a conservative judge,' and he bristled, you know, quite honestly, you know, when I said that, and he said his approach to decisions is simply to decide what the law calls for and go no further. He said, `Most of the labels people use to talk about judges and the way judges decide cases aren't too descriptive. Judges should be judges. They shouldn't be legislators. They shouldn't be administrators.' You know, he was very set on that, you know, that that was his role.

CONAN: But he didn't describe himself into any of the various schools of thought about interpretation of the Constitution, so far as you could tell anyway.

Ms. COSCARELLI: No. He certainly did not, you know, in the discussion that we had. You know, he--like I said, he shied away from the term `conservative.' I don't think there's anybody floating around out there who would use the term `liberal' to describe him. But, yeah, he certainly did not want to park himself in any one spot.

CONAN: I know you spoke with judges and attorneys in New Jersey that have worked with him or argued before him. What do they say?

Ms. COSCARELLI: Absolutely. You know, I've talked to people who worked with him in the US Attorney's Office, people who have sat on panels with him in the 3rd Circuit and people who have argued cases before him, and, you know, everybody says, you know, he has this amazing memory. You know, he--attorneys who would go into, when he was US attorney, to talk about a complicated case, you know, they would go in and they would study up on the particular issue, and they said by the time they hit Judge Alito's office, he already knew everything, and it wasn't because he had been prepping the way they had. It was just because he knew it.

And colleagues on the 3rd Circuit say that, you know, he's the kind of guy who will sit there very patiently, listen to whatever--you know, anything the lawyers want to say. He's very reserved during oral arguments, they say, but when he does open his mouth, you really have to listen, because the questions, the kinds of things he's asking, you know, the direction of his questions really go--cut right to the center of the controversial point of the subject, and they really cut to that center of what's being decided at the moment.

CONAN: On the Supreme Court, Judge Antonin Scalia, the source of that "Scalito" nickname and the "Little Nino" nickname as well, is known for being brusque, even caustic with his questions. Is Judge Alito the same way?

Ms. COSCARELLI: Not at all. Not at all. In fact, it's a very, very different reputation. You know, everything from the sidelines of his son's soccer games to the courtroom, you know, to even private dealings with lawyers, he is polite. He is, you know, gentlemanly is the kind of thing you hear people--he's--you know, I talked to people who say they have worked with him for years and have never once heard him--not only never heard him raise his voice, but never curse, you know, I mean, never pound his fist in frustration in the way that, you know, some other people do, and they say he's not that kind of guy.

CONAN: The 3rd Circuit has a reputation as one of the more liberal circuits around the United States. What is this conservative justice's reputation among his colleagues?

Ms. COSCARELLI: Among his colleagues, you know, I spoke with Maryanne Trump Berry, Judge Garth, Judge Cowan--a number of the judges there--and they all--you know, he clerked for Judge Garth when he was--Judge Alito did. He clerked for Judge Garth once he was out of law school, and Judge Garth likes to joke that he's such a quiet guy; that, you know, the first day he showed up in chambers, he said, `Hello,' and the last day, he said, `Good night,' and that he pretty much didn't hear anything from him in the meantime. But everybody says he's a very, very nice guy, you know, very--writes--you know, he writes almost all of his own opinions as opposed to the habit some people do, which is using law clerks to do it. He really enjoys--he told me he really enjoys the writing, he really enjoys the research. He compared it to putting together a puzzle.

CONAN: Kate Coscarelli, thanks very much for being with us today.

Ms. COSCARELLI: Thank you.

CONAN: Kate Coscarelli, a legal reporter for the Newark Star-Ledger. She joined us by phone from her office in Newark, New Jersey.

Samuel Alito served on the 3rd Circuit Court for 15 years. Timothy Lewis was a judge on that same circuit court in seven of those years. He joins us now by phone from Pittsburgh, Pennsylvania. And, Judge Lewis, very good of you to join us today.

Judge TIMOTHY LEWIS (Pennsylvania): Thank you very much. Happy to be with you.

CONAN: I wonder, how would you describe Sam Alito?

Judge LEWIS: Well, Sam Alito is, first and foremost, a true intellectual. He is a--in my view, a very thoughtful, very balanced and very fair judge. I happen to think that he's actually an excellent judge. It was a pleasure for me to have served with him on the 3rd Circuit for those years. And I guess at bottom--and this is the most important quality to me for anyone who puts on the robes--Sam Alito is intellectually honest. I do not recall an instance during the years that we served together--and even though I came from a very different ideological perspective than Sam, I do not recall an instance where I felt that Sam was result-oriented in any way or seemed to have any particular agenda. He just is a conservative. He is a conservative by nature, by personality, and certainly by jurisprudence. But he was a pleasure to work with, and frankly, I'm delighted for him today, and I think that he will make a fine justice on the Supreme Court. Although I do say that there may be many instances in which Sam and I will not agree.

CONAN: There are some who read his opinion in the Planned Parenthood vs. Casey opinion and say they can feel a visceral dislike for abortion there.

Judge LEWIS: You know, that is a bit of ar each, I think. You know, I was not on the court when that matter was decided. Had I been on the court, then I can assure you I would not have voted as Sam did. However, I don't know that one can extrapolate from his views in that case and predict that he will, as some have said, overrule Roe vs. Wade or whatever. You know, what I think is that a lot of the folks on the far right, whose views I've heard since the nomination was made this morning, are way overstating their case, and I think that the same is true on the left, the far left in terms of the fears of, you know, what Sam might do on the court and so forth. He's just a very careful, very cautious judge who approaches matters from a somewhat conservative perspective, but I don't think that there are any predictors there one way or the other as far as Roe vs. Wade is concerned.

CONAN: One phrase we're going to be hearing a lot when his confirmation hearings begin, same phrase I guess we heard a lot in the John Roberts confirmation hearings, stare decisis. Would--does he feel bound, do you think, by the previous decisions of the Supreme Court, decisions that have been affirmed again and again over time, which seem to be part of the bedrock of American law, and I guess we're going back to that same Roe vs. Wade?

Judge LEWIS: I have little doubt, based on the years that I spent sitting next to Judge Alito on the bench during oral argument and sitting next to him in chambers after oral argument, where we would--literally, we would decide--confer and decide the cases, I have absolutely no doubt that Sam understands and has a very high respect for stare decisis.

You know, let me just tell you a little anecdote that might shed some light on Sam as a judge and why he is so well-respected, even by those who don't agree with him and who don't share some of his views. The night before I was sworn in on the 3rd Circuit Court of Appeals, the late and legendary Judge Leon Higginbotham had me in his chambers. Now Leon Higginbotham, for--some of you may not remember, may not know, was a wonderful African-American judge--I am also an African-American--and who was also a great writer and historian and certainly did not come from what anyone could call a conservative judicial perspective, but Judge Higginbotham had me in his chambers and we went down the roster of my colleagues to be when I would be sworn in the very next day, and he was discussing each one. We got to Judge Alito. He said, `Now Sam Alito is my kind of conservative.' I said, `What do you mean by that, Judge?' and he said, `He does not have an agenda. He does not approach things in any predisposed fashion. He's got a very open mind. He just is a conservative. But he's honest, and I love sitting with him, and I love working with him.'

And I learned what Judge Higginbotham meant during the years that I was privileged to sit on that court and serve with Sam. He simply is an excellent and brilliant jurist who, as I have said over and over, just comes at things from a different perspective from mine, but he earned my respect during those years. And as I've said, I think he'll be just fine on the court.

CONAN: Does he have the demeanor to be a judge, do you think?

Judge LEWIS: There's just no question about that. If anything, he is about as shy and reticent a person as I know, and frankly, I was stunned by his delivery this morning at the White House in accepting the nomination, because he is so shy personally, and his demeanor is pretty much reflected, I think, by your earlier commentator who talked about his experience as a law clerk for Judge Garth. He is a very--a person of very few words, but when he speaks, you can't help but listen very carefully. I mean, I don't--he is not an in-your-face gavel-beating--pounding person by any stretch of the imagination.

CONAN: And you obviously followed civil rights cases very closely. This circuit--they came up more than occasionally on the 3rd Circuit. Do you have any concerns about his positions on civil rights?

Judge LEWIS: I would have concerns about any nominee that this president makes on the matter of civil rights. I have deep concerns about this administration's approach to and views on civil rights. Of course, that said, I am practical enough to understand that this president is going to appoint a conservative. I think that in appointing Sam Alito, he has, based on my experience with him, with Judge Alito, appointed someone who has an open mind and I do not believe is going to try to do harm to well-established civil rights that have helped make this country great. And frankly, I think--you mentioned earlier bedrock decisions and stare decisis are now a part of the court's--of the institution of the Supreme Court, and I do believe that he will respect that. I think that--you know, as I said, I don't expect anything but a conservative justice, but in Sam Alito, we have a very fine judge, someone who I think will grow into the position as he sits on the court in the years to come, and I have high hopes that he will continue to show the respect for the law--the established law that he has thus far.

CONAN: We're speaking with Judge Timothy Lewis, who served on the 3rd Circuit Court of Appeals with Sam Alito for seven years. You're listening to SPECIAL COVERAGE from NPR News.

And, Judge Lewis, if I could ask you, you got to watch him both--Judge Alito both under the pressure of live court arguments and also in a more thoughtful vein when he was writing and participating in decisions. He's got a test very few of us would relish coming ahead. That's his appearance before the Senate Judiciary Committee. How do you think he'll do?

Judge LEWIS: I think he'll do well. I mean, you know, as I said, he is a man of few words. He's very soft-spoken, even reticent I would say. But he's also--he's a true intellectual and legal scholar. He is well-versed in the Constitution and in the important precedents of the Supreme Court that I think the committee will want to talk to him about. And on the whole, I think that he will do well. I mean, this is a person who--and I think one of the things that I respect the most about Sam is that he is not a kind of a politico, if you will. And I expect that like you saw with Judge Roberts, now Justice Roberts, you will see someone who is simply trying to do the best that he can to answer questions from a legal scholarly point of view as opposed to just providing satisfactory answers that might assuage one side or the other. I truly believe that. So I think he'll do well, but it's going to be very difficult, as it would with anyone.

CONAN: Judge Lewis, thanks very much for being with us today. We thank you for your time.

Judge LEWIS: It's my pleasure. Thank you, sir.

CONAN: Timothy Lewis, now an attorney with Schnader Harrison Segal & Lewis, a law firm based in Philadelphia. He's a former judge on the 3rd Circuit Court of Appeals where he served with Samuel Alito. And he spoke with us from his office in Pittsburgh, Pennsylvania.

CONAN: As we mentioned, President Bush's previous nominee for this position, Harriet Miers, drew unwavering criticism from many on the right wing of the Republican Party. Joining us now David Frum, a former Bush speechwriter and author of "The Right Man: The Surprise Presidency of George W. Bush." He was among those critics of Harriet Miers.

David Frum, nice of you to be with us today.

Mr. DAVID FRUM (American Enterprise Institute): Thank you very much.

CONAN: We just have a couple of minutes before we have to go to a break, but I did want to ask you are you happier with the nomination of Samuel Alito?

Mr. FRUM: I am dancing on the rooftops. I think this is a fantastic choice. I think conservatives of all description and really everyone who cares about the law is going to be delighted with this nomination.

CONAN: What in particular about Judge Alito's past gives you that confidence?

Mr. FRUM: Well, I think he's good both for the conservatives and for the country. First, he's brilliant, which is something that I think Americans are entitled to expect from those people who take on this extraordinarily heavy responsibility of the Supreme Court. I think he's somebody who has a conservative and constitutional philosophy, but he's a very fair-minded person. He has independence from the White House. So when he reaches judgments--and we hope they will be broadly supportive of the authority the president needs to wage and win the war on terror--they will credible because they're coming from someone who's outside, who wasn't party to making those decisions in the first place. I think he will--Americans, when they see him on television at these hearings, will say, `This is a fair-minded person. This is a person who will do justice in the way that I want to see it done.' So just all around, a great success.

CONAN: More with David Frum in just a moment. We'll also be joined by David Corn, Washington editor for The Nation magazine, with another perspective on today's nomination by President Bush of Judge Samuel Alito, who currently serves on the 3rd Circuit Court of Appeals in Philadelphia, to fill the Supreme Court seat to be vacated by Sandra Day O'Connor.

More after the break. I'm Neal Conan. This is special coverage from NPR News.


CONAN: This is special coverage from NPR News. I'm Neal Conan in Washington.

At about 8:00 this morning Eastern time, President Bush nominated Judge Samuel Alito, who serves on the 3rd Circuit Court of Appeals in Philadelphia, to serve on the Supreme Court of the United States. He would replace Sandra Day O'Connor, who has submitted her resignation. President Bush's previous nominee for that post, Harriet Miers, withdrew her name from consideration last week after she took political fire from right and left, mostly right. We are talking today with David Frum, who's the former speechwriter for President Bush and author of "The Right Man: The Surprise Presidency of George W. Bush."

And also joining us here in Studio 3A is David Corn, Washington editor for The Nation magazine. I going to ask both of them to stay with us just for a moment because joining us now on the line from Capitol Hill is Senator Mark Pryor, a Democrat from Arkansas. He was a member of the so-called Gang of 14 senators who negotiated an agreement over use and non-use of the filibuster. He's with us from his office here in Washington.

Senator Pryor, nice of you to be with us today.

Senator MARK PRYOR (Democrat, Arkansas): Hey, Neal, thank you for having me on.

CONAN: What's your initial reaction to the name of Samuel Alito?

Sen. PRYOR: Well, like most of America, before this morning, I didn't know very much about him. I learned quite a bit today through the media. He sounds like someone who has a lot of credentials there. And basically when I look the Supreme Court nominations, or really any of these judicial nominations, I have a three-part criteria. One is credentials, second is his judicial temperament and third is will the nominee be fair and impartial when on the bench. And that third criteria is where you get into the question of activism and, you know, sort of some of the agenda that they might bring to the court.

CONAN: Mm-hmm. The Gang of 14's agreement was that nominations would be voted up or down except in extraordinary circumstances. Thus far, do you see anything that would qualify the Alito nomination for extraordinary circumstances?

Sen. PRYOR: By the way, let me say this. The people in Arkansas never thought I'd come to Washington and join a gang. OK? But I have, I guess. And you're right, we did use the phrase `extraordinary circumstances,' and it's just too early to know whether there are any extraordinary circumstances around this nomination. Quite frankly, I start with the presumption that there are none, and unless I'm convinced that they develop, you know, in my mind, there are none. But it is so early--given the fact that it's less than 24 hours old at this point, it's possible those will develop. And I hope they don't. I don't really anticipate that they will, but it is possible. And I think we're going to have the 14 of us in the Gang of 14 sit down at some point this week. I don't know if that's been scheduled yet, but--everybody's traveling today--but probably sit down this week and start the process of talking about this nomination.

CONAN: One of the issues that's already come up, the president said he would like the Senate to vote on this before the end of the year. And there have been some members of the Judiciary Committee who've been saying, `Well, wait a minute, we want to make sure we take our time with this nomination and go back through the record,' and realistically, January is about the time that hearings could get under way.

Sen. PRYOR: Well, this is a lifetime appointment. And there's no doubt--you can just look at Sandra Day O'Connor's record--that these justices will have a tremendous influence on American law and on American society. My hope is that this process in the US Senate, the confirmation process, will be very rigorous but also very fair. And I don't know exactly how long it takes, but when you look at how many legislative days we have left this year--you know, we only have about 60 days left in the year--we don't have that many legislative days considering the fact that we have two or three fairly major holidays during this next 60 days. So I don't know how realistic it is that we can actually have a vote on this before the first of the year. We'll just have to see what Senator Leahy and Senator Specter are able to work out there.

CONAN: I was going to describe you as a member of the caucus of 14. I'm not sure if people in Arkansas would be any happier with that.

(Soundbite of laughter)

Sen. PRYOR: That's right. That's exactly right.

CONAN: Senator Pryor, thanks for being with us.

Sen. PRYOR: Hey, thank you for having me. I appreciate it.

CONAN: Democrat Mark Pryor of Arkansas joined us from his office in Washington, DC.

And, well, let's get back to our commentators, David Corn, Washington editor of The Nation magazine, and David Frum, who writes a blog for National Review Online.

And, well, David Corn, we have yet to hear from you on the new nomination. Is this different? Is this something where Democrats, you think, are going to be ready to make a fight?

Mr. DAVID CORN (The Nation): Well, first, let me congratulate David Frum. It's very rare that we see a president actually bow down and kiss the feet of his critics. I mean, this is exactly why they wanted to get Harriet Miers out of the way, to get somebody in who was someone I would call a right-wing legal warrior. I don't mean in a pejorative sense, but somebody who people on the right have long wanted to put on the court because their intellectual force and abilities would help steer the court to the right. And David and Bill Kristol and the others are very overt in their agenda. I mean, there's nothing secretive about this.

And I think because of that, there are people on the left--and we see some early Democratic senators coming out and saying, `Wait a second. We're losing a justice, Sandra Day O'Connor, who was in the middle. And there is a move here to move the court to the right.' The president did win the election, but with 50.8 percent of the vote. At a time when the court is deciding all sorts of very crucial issues from assisted suicide to presidential elections, whether environmental laws apply or don't apply, and, of course, abortion and privacy rights matters, maybe we're beyond the day where it's just a matter of qualifications. If people like David and Bill Kristol and others want to push the court to the right, it's not just a matter of qualifications, there's agenda here, well, then the other side has to the right to say, `Wait a second. We're going to fight against that. And why? Because we don't believe it's in the interest of the United States to move the court to the right and to have the decisions come down in that way.'

So what I'm looking at here--or what we might be looking at--you know, Mark Pryor didn't give us too many clues there--would be a big, you know, fight as perhaps there should be about these key policy issues. Because, as I said, the court is playing this crucial role and it's become sort of the fulcrum point for a lot of issues in our society. And so I assume that a lot of liberal lobbying groups and such are expecting the Democrats to put up a big fight. But they can only really do that if they get 40 or more Democrats, 41 or more Democrats, who all agree. So the gang of--the Democratic half of the caucus or Gang of 14 are going to have to come along and join the rest of the Democrats to do that, and right now I can't make a prediction whether that's going to occur.

CONAN: Mm-hmm. David Frum, some say that this is a fight that some on the right at least have been hoping for.

Mr. FRUM: Well, I don't think anybody on the right is looking for a fight; they're looking for a great justice. And I also have to say with--I mean, I'd like to take David's compliment. I don't think the president kissed anybody's anything. I think he corrected a mistake.

But I think one of the things that I hope people on the other side of the aisle, on the other side of the ideological spectrum, will take away from watching this battler over Harriet Miers is, you know, the court is not just about policy. It's not just about winning. I think conservatives set a real example here of principle. One of the things I wrote was even if I were assured that Harriet Miers would vote the way I want her to in every single case, I would still be against this nomination. And so many conservatives said the same thing, because they believe in the institutions of the country. They believe in something bigger than getting their way. And I hope Democrats will take a look at that and say, `You know, the court is about these enduring things.' Samuel Alito is the kind of person who belongs on the Supreme Court when there's a Republican president.

And I think the exact parallel is what happened with Stephen Breyer. Republicans would've wished they won the election in 1992; they didn't. They would've wished they had the Senate in 1992; they didn't. So there's a Democratic president and they went out and they got the best liberal they could find, and I think he's been an ornament to the country. And I think that's the way it's going to work on this other side. I don't believe we're going to see a big fight because I think most Democratic senators, and certainly enough to make a filibuster impossible, will say, `Obviously, if we'd won, this is not the person we would have picked. We didn't. They won, I mean, you know, pretty decisively and they've got the Senate. This guy is a good guy and he's the sort of conservative--if you're going to have any conservatives on the Supreme Court, he's the kind you want.'

Mr. CORN: But it's certainly true, David--you know, you can say that this isn't what drove you. There are a lot of conservatives, some actually who supported Harriet Miers, who said that they are driven by policy outcomes. They wanted a justice, someone--you know, part of the conservative base of the Republican Party wants certain judges on the court to get certain policy outcomes. That's undeniable. We saw that from, you know, the social conservatives...

Mr. FRUM: Right. We had that debate and the side that won was the side that said, `We want somebody that makes the whole country proud.'

Mr. CORN: Well, I'm sorry. Having a justice on who might, you know, undo the rights to privacy and abortion would not make the whole country proud. And I mean, that's a fundamental issue and, in fact--and Bush said he wanted people in the mold of Scalia and Thomas, which was sending a signal. These are people, you know, who follow certain policy outcomes. No one thinks--you know, you don't want someone in the mode of Justice Thomas because he's considered one of the biggest and brightest legal scholars in the world; he wanted him because he was sending a message because of the conservative outcomes of his policy decisions.

CONAN: We're not going to agree on this...

Mr. CORN: Right.

CONAN: ...but, David Frum, let me ask you a question. Many conservative groups that had been raising money around the issue of the Supreme Court nomination, some of them for years, kept their powder dry during the Miers nomination and declined to put out the kind of advertising and other kinds of efforts that we saw certainly for Judge Roberts. Do you expect that those groups will come around now?

Mr. FRUM: Oh, I think you'll see enormous conservative support. But I don't think--I may be wrong about this and I may be naive and idealistic, I don't think you're going to see a tremendous battle over Samuel Alito. I think there will certainly be money spent on TV ads by supporters and opponents, but as this nomination comes before the Senate, as Americans get to view him, even people, you know, certainly many of the senators, I think even people in the country, many of them almost as passionate as David Corn, will say, `Gosh, I mean, there's going to be conservative judges on the court, and if there are going to be some, this is the kind there ought to be.'

Mr. CORN: Well, actually, I...

Mr. FRUM: I mean, it can't be that the liberals get all the seats.

Mr. CORN: No, I think that was actually the attitude towards John Roberts. And John Roberts ended up replacing Rehnquist, and now you have someone who is very conservative replacing someone who wasn't. And so I think...

Mr. FRUM: No, but Sandra Day O'Connor was...

Mr. CORN: ...a review of his decisions and his performance at the confirmation hearing may be what tilts it one way or the other for Democratic senators.

Mr. FRUM: Yeah, I think--here, I will just venture a prediction. You will not see a filibuster, and I think he will win the votes of at least a dozen and maybe as many as two dozen of the Democrats.

Mr. CORN: I mean, I think that's possible. I don't do predictions.

CONAN: OK. And we'll leave it there. But we suspect we may be back with both of you before too long. David Frum, thanks very much for being with us today.

Mr. FRUM: Thank you.

CONAN: David Frum writes a blog for the National Review Online. He's a fellow at the American Enterprise Institute, and he joined us from the BBC studios here in Washington, DC.

David Corn was kind enough join us here in Studio 3A. He's Washington editor of The Nation magazine.

David, thanks very much for your time today.

Mr. CORN: Thank you, Neal.

CONAN: We're talking about today's nomination by President Bush of Samuel Alito, a judge on the 3rd Circuit Court of Appeals in Philadelphia, to replace Sandra Day O'Connor, who has submitted her resignation as Supreme Court justice. The president hopes to get the Senate Judiciary Committee to hold hearings by the end of this year. The Senate Judiciary Committee thus far is talking about maybe in January.

You're listening to special coverage from NPR News.

Within the next few months, if all goes as the White House plans, Judge Alito will go before the Judiciary Committee. And we last saw this process play out for now Chief Justice John Roberts, whose performance during those hearings was widely praised. Judge Alito may face a harder grilling. Our next guest, though, says that he should do extraordinarily well. Michael Gerhardt is a professor of law at the University of North Carolina at Chapel Hill, author of "The Federal Appointments Process: A Constitutional and Historical Analysis." He's with us now from the studios of WUNC, our member station in Chapel Hill, North Carolina.

And, Professor, nice to talk with you again.

Professor MICHAEL GERHARDT (University of North Carolina at Chapel Hill): Good afternoon.

CONAN: So what kind of nominee should we expect to see in the confirmation hearings?

Prof. GERHARDT: Judge Alito is a smart, very articulate person. He is very thoughtful, as we've just heard, and I think that's exactly what we will see. We will see somebody who is well informed, somebody who's thoughtful, somebody who's articulate. My guess is that it will be a very heated hearing, he'll be pressed rather hard, but he's got a lot of experience, I think, as somebody who argued before the Supreme Court and as a lawyer, and he can probably take that heat. But he's likely to put forward a very respectable performance.

CONAN: Mm-hmm. If today is any indicator, Judge Alito will be, as you suggest, scrutinized very carefully. His competence, his politics, his personal life will all be gone through with a fine-tooth comb. Obviously, there's no way to expect, you know, any skeletons jumping out of the closet, but on the basis of the resume that we're seeing today, he looks like a very good nominee.

Prof. GERHARDT: Yes, he's got the academic credentials, I think, that some people suggested were lacking in the last nominee. He's got judicial experience, which again some people were concerned was lacking in the last nominee. And he's also, I think, somebody who has got the right kind of judicial record. That's, I think, what has made conservatives so gleeful today, is that he was on their short list. His judicial philosophy seems to be strong, as well. So he's got both academic and other credentials and a commitment to a particular judicial philosophy. That's, I think, why Republicans and conservatives right now are very happy; that's why Democrats are skeptical.

CONAN: He, asked himself, will not describe that judicial philosophy. How would you describe it?

Prof. GERHARDT: I think it's fairly evident from his 15 years on the US Court of Appeals for the 3rd Circuit that he's got a thoughtful decision-making pattern. As Judge Lewis suggested, he's not necessarily an ideologue, but he does time and again come out with conservative results. And so what I think I would say in describing his judicial philosophy is that it's careful, it tends to be very skeptical of congressional power, it tends to be very skeptical of individual rights, such as the right to have an abortion. And at the same time, he's very resistant to broadly interpreting congressional statutes such as those prohibiting sexual harassment.

CONAN: So that would put him seemingly firmly on the conservative side of the court.

Prof. GERHARDT: Yes, he's going to be firmly on the far right of the court. President Bush promised to name somebody in the mold of Justice Scalia or Justice Thomas. Judge Scalito is likely to join them, but he is not likely to be as, I think, irascible and as temperamental as they sometimes might be, as argumentative as they might sometimes be, but instead he'll be probably more careful in how he says things and maybe even prone to decision-making on an incremental case-by-case basis.

CONAN: I know you've spoken with several of Judge Alito's former law clerks. What do they tell you about him as a judge?

Prof. GERHARDT: He is very highly respected not just by his law clerks, but the people with whom he sits. And that's high praise, indeed. To be able to sit on a court with people with different opinions and have them all praise your temperament, praise the way you approach decision-making is about the best compliment a judge can get. And I think that that's something that ought to make Judge Alito very proud. I'm sure it was part of the calculus of President Bush. And the law clerks certainly speak very highly of his intellect, his careful approach to decision-making, the fact that he, you know, approaches cases with an open mind, with people not necessarily knowing exactly what he'll do in the case in front of him. But at the same time, he'll read through the record carefully, try and make what he regards as the best decision. And so I think the insider account of his performance in the US Court of Appeals for the 3rd Circuit is generally very positive.

CONAN: And if the issue of credentials is past us, certainly in terms of Judge Alito, if his temperament is past us, then it will all come down to those questions about his judicial philosophy or some might say his judicial ideology?

Prof. GERHARDT: I think that's exactly right. I think that there's--this is not going to be a debate about credentials or about temperament. I think he's got very solid--he's very solid on both of those. But what the right--at least what I heard from the right on the Harriet Miers nomination, was they were very disappointed with the lack of proof about her ideology and the Democrats were largely silent. So ideology clearly matters to people on the right. It mattered to Democrats with the Roberts nomination because they wanted to know more about his ideology. My guess is that will be the focus of the hearings. He will be pressed hard in questioning about his ideology, and judicial philosophy will be front and center in those hearings. And I think that this is what President Bush ultimately wanted was a fight. He wanted a fight that would help vindicate people on the right in their beliefs about the Constitution.

CONAN: Professor Gerhardt, thanks very much.

Prof. GERHARDT: Thank you.

CONAN: Michael Gerhardt, professor of law at the University of North Carolina at Chapel Hill. He's the author of "The Federal Appointments Process: A Constitutional and Historical Analysis," and joined us from the studios of member station WUNC in Chapel Hill.

To find out more about Judge Alito's past and read some of his opinions, you can go to our Web site at npr.org. And stay tuned to NPR News for continuing coverage of the Alito nomination.

This has been special coverage from NPR News. I'm Neal Conan in Washington.

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