THE ALITO TRIAL: IT'S VITAL WE FIND BEST JURIST WE CAN.
WHEN I recently received an invitation to a reunion of my Yale Law School class, it stirred memories of the astounding group of students I found when I arrived there in 1972.
Bill and Hillary Rodham Clinton are the most famous, of course, but my classmates also include someone else who has made news lately: Sam Alito.
When Alito was nominated to the Supreme Court, my fellow alumni began contacting one another, contemplating the elevation of one of our own to the highest judicial dais in the land. Sam was remembered fondly and with admiration.
But an issue of conscience emerged - namely, whether respect for Sam could be squared with the deep qualms many of us feel about the Bush administration and its failings. One classmate sent out an anguished e-mail message begging us to fight at all costs a nomination born of such a regime.
This is the issue that many liberals face as the Senate contemplates Alito's nomination. Sadly, Supreme Court confirmations have devolved into litmus tests on policy positions, appropriate for the election of legislators but exactly the opposite of what should be required of a judge.
This practice is often traced back to the confirmation hearings that scotched the nomination of Robert Bork. Some say that the process for Alito should be no different. The two situations are, however, diametrically opposite, and I say that from personal experience.
In my first semester of law school, I was assigned to a constitutional law seminar taught by Bob Bork. And though I know Yale's faculty members embrace a broad range of views, the extremity of professor Bork's positions still amazes me.
Bork coupled a distaste for the Bill of Rights with a devotion to the Commerce Clause that made it the centerpiece of our entire semester. The privilege against self-incrimination, we were told, should have been limited only to cases of physical intimidation and torture - certainly it should not be invoked to protect a defendant from verbal self-incrimination on the witness stand.
Charming and articulate, Bork told us that he had left the practice of law to pursue the more intellectual aims of teaching because, frankly, he just didn't care that much about people.
It was easy to believe him. The next year, when, as solicitor general, he fired the independent prosecutor Archibald Cox in order to protect Richard Nixon from the Watergate scandal, we students watched the reports on live television from the student lounge in despair - but not, for those of us who had sat in that con law seminar, in shock.
Bork clearly had a brilliant and provocative mind, and the Constitution was grist for his mill. But he was the perfect example of someone who should be kept off the Supreme Court at all costs.
When I finished law school,I clerked for Leonard P. Moore, a judge on the U.S. Court of Appeals for the Second Circuit. The contrast with Bork was stark.
Moore checked his ego at the courthouse door. He was politically conservative, but his great integrity, restraint and personal devotion to the law made him a fair and sensitive jurist. He hired clerks irrespective of their political views. He was open-minded in his discussions with us and weighed all viewpoints carefully.
Alito's character suggests he'll follow the tradition of Moore. In our class, Sam was respected for his intellectual ability. He was quiet, but when he did speak, his remarks were thoughtful and to the point.
He wasn't showy or pretentious. He listened to others. I can't recall Sam prejudging an issue or reaching arbitrary conclusions. He worked hard and was never ashamed of that, even at a school that favored the appearance of effortless brilliance.
Since announcing the nomination of Alito, the Bush administration has conducted a high-powered marketing campaign to sell him to the public. Such efforts anticipate and seek to thwart hostile responses like those that sank Bork.
But neither a witch hunt at the Senate nor a hard sell from the White House will afford Alito the confirmation process he, or the country, deserves: one as thoughtful and measured as the legal mind it considers.
The pain of living in a pluralistic society is that sometimes my ideas prevail, but sometimes the prevailing idea is yours. When we disagree on policy, my best investment is in leadership that is fair, concerned for the welfare of the American people and devoted to our Constitution.
Many feel that the current administration comes up short in these areas, but that doesn't mean that everyone it taps for service does. I cannot, for example, imagine Alito disparaging the right of an accused person to remain silent at trial.
The president took the high road on this nomination. He juggled his politics and his public relations, and while I don't like either, I have to be grateful for the quality of lawyer, and individual, who emerged as the nominee.
We have to decide whether the unfortunate tradition begun with Bork's nomination should be continued indefinitely or whether, with the wisdom of hindsight, we exhume it only when absolutely warranted.
Liberals among us have got to get real - to press for the finest jurists a conservative administration is willing to offer, and to spend our capital in that pursuit.
(color) U.S. Supreme Court nominee, Judge Samuel Alito, listens to questions during the third day of his confirmation hearings.
Joe Raedle/Getty Images
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|Publication:||Daily News (Los Angeles, CA)|
|Date:||Jan 15, 2006|
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