When it comes to Supreme Court nominees, conservatives face a quandary. They want a justice who is a conservative ideologue, but publicly call for a judge who would be a non-ideological, strict-constructionist umpire, whose only agenda is a deep desire to divine the original intent of our forefathers.
To squiggle out of this contradiction, conservatives delineate three spheres of judicial evaluation – the personal, the political and the professional – and emphasize whichever helps their case. So we have not one, but three Sam Alitos: the personal Alito, affable, courteous, and humble; the political Alito, anti-Roe, anti-union, anti-Warren Court; and the professional Alito, a blank slate, the Platonic ideal of equanimity and forbearance. It is this Alito (and not the one who wrote those nasty things about Roe while in the Reagan administration) who meets with pro-choice senators, and assures them he’s “not an advocate” and doesn’t “give heed to [his] personal views.”
But what of those who know all three Sam Alitos? For fellow alumni of Yale Law’s Class of 1975, Alito’s nomination raised a dilemma: Many of them liked the personal Sam and loathed the political Sam. What to do? Soon after the announcement one classmate sent an e-mail to the class, saying he’d received requests for interviews from reporters and wondered if others were interested in talking to the press. Steven Brill, founder of American Lawyer and Court TV, wrote back to say he was getting “buried in calls.” “Though I did not know Sam well, I’ll probably take a few and, of course, speak highly of him as a person and a smart pick for Bush.”
More e-mails followed, mostly in this vein. Tulane law professor Joel Friedman vowed to be “completely positive even though we disagree on fundamental policy issues.”
But then Charles Brown, a D.C. public interest lawyer shattered the bonhomie with an e-mail titled: “J. Alito – NO – his gang wants to turn back the 14th Am[en]d[men]t & gut Commerce Clause.” “Classmates,” he wrote, “I don’t relish writing this letter, but it’s time we decide which side we are on. … Our training is to be leaders in time of crisis, not cheerleaders for a classmate’s ambitions. … If he is your friend, invite Sam Alito to dinner – but, for God’s sake, don’t promote for Bush, Scalia, and Clarence their ironclad fifth vote.”
A debate then ensued among the class’ Democrats about just which Alito mattered. “Get real,” another classmate shot back to Brown. “I part ways with Sam on policy, but the bottom line has to do with the caliber of person, and jurist, going up to the Supremes. And for my money, there’s no better caliber of either. We should be grateful to God that Bush aimed high on this one.” Friedman chimed in, “We all voted for President. My candidate lost. I need to get over it and be thankful that he chose someone of Sam’s intellect and, more importantly, character.”
The camps divided along this line as the exchange continued. Peter Goldberger, a criminal appellate attorney who’d already given some favorable comments to the Los Angeles Times, wrote in to say he’d been contacted by the White House Office of Political Affairs, which hoped to send reporters looking for liberal friends of Sam to him. “Just to let folks know that there is now a political campaign underway to exploit, and I’m sure to distort, the nuanced and sincere comments of those of us who have spoken publicly on this subject. I shouldn’t have been surprised.”
“I think there is some category confusion regarding comments about Sam,” wrote Boston attorney Andrew Cohn in the final e-mail in the thread. “[L]et’s stipulate what we all know: Sam is a terrific person, a great guy, a smart and knowledgeable lawyer. That misses the point; I am sure I would find many judges past and present who meet the test of ‘terrific person, great guy, smart and knowledgeable lawyer.’ That is insufficient to trump debate as to whether … Senate Democrats and other American voices are entitled to object to judicial views that … suggest the selection of Sam is aligned with partisan governing, unreflective of vast portions of the population.”
Somewhere in the middle of this exchange, someone wrote a “heads up” pointing out that Sam Alito’s e-mail was right there in the “cc:” field. Apparently he’d been receiving the flurry of missives debating his suitablility.
So what did Judge Alito think of the fracas in his Inbox? Well, it depends on which Sam Alito read the e-mail. If it was the personal Sam Alito, his feelings might have been hurt; if it was the political Sam Alito, he might have been angry at the liberals exhorting their colleagues to block his nomination; and if it was the professional Sam Alito, we’re supposed to believe he felt nothing at all.
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