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Errantry: Novak's Journal
...Words to cast/My feelings into sculpted thoughts/To make some wisdom last
Random: On the Nomination of Samuel Alito to the Supreme Court of the United States 
23rd-Jan-2006 02:03 pm
I See You!
I am one of those Americans who finds the split in American politics and political discourse into two distinct and absolute positions to be simple-minded and distasteful. In fact, it seems to me to be an absolute abdication of reflective thinking and civic responsibility. The very notion that everything in politics and culture could split down to one all-right party and one all-wrong party should be laughable on the surface, and such demonization of half of our citizenry is the very opposite of what a pluralistic democracy really demands. True pluralism is not everyone subscribing to the same "pluralist" ideology.

So when I read The New York Times' editorial today on Samuel Alito's nomination to the Supreme Court, I went in with a mind willing to be persuaded by a good and reasonable argument, should one need to be made. I finished the editorial with more than a little dismay, having found only the kind of loose intimations and allegations that I expect from a blogger than from the editorial board of one of America's premiere newspapers.

When I consider the Times' "fuzzification" of details against the testimony at the confirmation hearings of Judge Ruggero J. Aldisert, I'm embarrassed. Judge Aldisert gave his Democratic Party bona-fides up front, down to the iconic status of those famed sets of initials, JFK, RFK, and LBJ. His testimony about Alito as a judge who, like all good judges, consciously moved to transcend simple party politics put the posturing of the Senators of both parties to shame, as far as I could tell. It is equally telling to me that the Times' editorial doesn't engage an enthusiastic Democrat's endorsement like that of Judge Aldisert as much as ignore it entirely.

Having no knowledge of Alito before these hearings, having never read a single opinion of his, listening to the review of his fellow judges was quite illuminating to me. I wondered if this would politicize the judges, as some had speculated beforehand. Instead, I found them far more important for coming to some kind of informed understanding of the nominee than any of Senators' speeches were. Particularly in this judge's case, with a Democratic record that was unimpeachable, crossing the "lines" and speaking so thoughtfully and forthrightly carries, even weeks later, far more weight of insight and integrity than the venerable Times managed today.

I attach the Submitted Remarks of Judge Aldisert and his actual committee transcript in case anyone wonders why I'm so embarrassed by the Times' editorial.

Submitted Remarks

REMARKS of RUGGERO J. ALDISERT

Confirmation Hearings U.S. Senate Judiciary Committee
for
SAMUEL A. ALITO, JR.
January 12, 2006

Mr. Chairman and members of the committee, I thank you for this opportunity to offer my views on my distinguished colleague.
When I first testified before this committee in 1968, I was seeking confirmation of my own nomination to the federal appellate bench. I speak now as the senior judge with the longest record of service on the Third Circuit.
I begin my brief testimony with some personal background. In May 1960 I campaigned with John F. Kennedy and his brother Edward in the critical Presidential primaries of West Virginia. The next year I ran for judge in Pittsburgh on the Democratic ticket for the Court of Common Pleas in Allegheny County and I served for eight years as a state trial judge.
Democratic Senator Joseph Clark of Pennsylvania, was my chief sponsor when President Lyndon B. Johnson nominated me to the Court of Appeals in 1968. Senator Robert F. Kennedy of New York was one of my key supporters.

Yet, political loyalties became irrelevant when I took up my commission as a federal judge. The same has been true in the case of Judge Alito, who served honorably in two Republican administrations before he was appointed to our Court. Judicial independence is simply incompatible with political loyalties, and Judge Alito’s judicial record on our Court bears witness to this fundamental truth.
I have been a judge for 45 of my 86 years. Based on my experience, I can represent Judge Alito is among the first rank of the 44 judges with whom I have served on the Third Circuit, . . . and including another 50 judges on five other Courts of Appeals on which I have sat since taking senior status.
Moreover, I have been a long-time student of the judicial process. I have written four books and more than 30 law review articles on the subject. This study required me to study the current work of 22 justices on the U.S. Supreme Court. I have read hundreds of opinions of appellate judges of every federal circuit, every state and every political stripe.

The great Cardozo taught us long ago: "The judge even when he is free, is not wholly free. He is not to innovate at pleasure." This means that the crucial values of predictability, reliance and fundamental fairness should be honored.
As his judicial record makes plain, Judge Alito has taken this teaching to heart. He believes that legal outcomes will follow the law as dictated by the facts of the particular case, whether the facts involve commercial interests, governmental regulation, or intimate relationships.
According to these criteria, Judge Alito is already a great judge. We who have heard his probing questions during oral arguments, of being privy to his wise and insightful comments in our private conferences. We who have observed at first hand his impartial approach to decision-making and his thoughtful judicial temperament and know his carefully crafted opinions. We who are his colleagues are convinced that he will also be a great Justice.
If Judge Alito is confirmed, as I believe he deserves to be, he will succeed a Justice who has gained a reputation as a “practical” Justice whose resistance to ideologically-driven solutions has positioned her as a “swing” vote on the Court. Justice O’Connor has described her approach to judging in this way:

Quote: “It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis. . . The only way for judges to mediate these conflicting impulses is to do what they should do anyway: stay close to the record in each case that appears before them, and make their judgments based on that alone.” End Quote
Knowing Sam Alito as I do, I am struck by how accurately these words also describe the way in which he has performed his work as a federal appellate judge. It is why, with utmost enthusiasm, I recommend that he be confirmed as a an Associate Justice on the Supreme Court.


Testimony Transcript

SEN. SPECTER: Thank you very much, Judge Barry.

We turn now to Judge Ruggero Aldisert, a bachelor's degree from the University of Pittsburgh in 1942 and law degree from the same institution in 1947 with intervening service in the Marine Corps, served on the Court of Common Pleas of Allegheny County from 1961 to 1968, at which point he was appointed to the 3rd Circuit by President Lyndon Johnson.

Judge Aldisert and I were reminiscing about my predecessor, Judge -- Senator -- he didn't get to be a judge -- Senator Joe Clark, whose seat I now occupy. Was chief judge from 1984 to 1986 and took senior status in 1986. Has been an adjunct professor at the University of Pittsburgh and has served with Judge Alito on the 3rd Circuit for the past 15 years.

Thank you for coming all the way from California, Judge Aldisert, to be with us today. And we look forward to your testimony.

JUDGE ALDISERT: Thank you, sir.

Mr. Chairman and members of the committee, I thank you for this invitation to offer my views on my colleague. But before proceeding into my formal statement, I want the record to show that -- there was a discussion this morning about ages of judges; well, I am an old man. (Laughter.)

And I'll tell you how old I am. There's a certain distinguished United States senator sitting up there who I swore in as a lawyer in the city of Pittsburgh over 40 years ago, and that's Orrin Hatch. (Laughter.) And I will also say that I presided over the first jury trial that he ever tried, and he won the case.

SEN. LEAHY: Awww. (Laughter.) Aw, that's sweet, Orrin.

SEN. HATCH: I'm glad you said that, Judge. They don't believe it. (Laughter.)

SEN. LEAHY: I never knew you won one! (Laughter.) That's nice.

SEN. SPECTER: They've always gotten along very well together, Senator Leahy and Senator Hatch.

JUDGE ALDISERT: When I first testified before this committee in 1968, I was seeking confirmation of my own nomination to the federal circuit court. I speak now as the most senior judge on the 3rd Circuit. And I begin my brief testimony with some personal background.

In May 1960, I campaigned with John F. Kennedy in the critical presidential primaries of West Virginia. The next year. I ran for judge, as was indicated, and I was on the Democratic ticket, and I served eight years as a state trial judge. And as the chairman indicated, Senator Joseph Clark of Pennsylvania was my chief sponsor when President Lyndon Johnson nominated me to the Court of Appeals. And Senator Robert F. Kennedy from New York was one of my key supporters.

Now, why do I say this? I make this as a point that political loyalties become irrelevant when I became a judge.

The same has been true in the case of Judge Alito, who served honorably in two Republican administrations before he was appointed to our court. Judicial independence is simply incompatible with political loyalties, and Judge Alito's judicial record on our court bears witness to this fundamental truth.

I have been a judge for my -- for 45 of my 86 years. And based on my experience, I can represent to this committee that Judge Alito has to be included among the first rank of the 44 judges with whom I have served on the 3rd Circuit, and including another 50 judges on five other courts of appeals on which I have sat since taking senior status.

Moreover, I have been a long-time student of the judicial process. I have written four books on the subject, and more than 30 law review articles. And this study required me to study the current work of 22 justices of the U.S. Supreme Court, and I've read hundreds of opinions of appellate judges of every federal circuit, every state and every political stripe. And the Great Cardozo taught us long ago, the judge, even when he is free, is not wholly free; he is not to innovate at pleasure. This means that the crucial values of predictability, reliance and fundamental fairness must be honored. And as his judicial record makes plain, Judge Alito has taken this teaching to heart. He believes that legal outcomes will follow the law as dictated by the facts of the particular case, whether the facts involve commercial interests, government regulation, or intimate relationships.

According to these criteria, Mr. Chairman, Judge Alito is already a great judge. We who have heard his probing questions during oral arguments, we who have been privy to his wise and insightful comments in our private decisional conferences, we who have observed at firsthand his impartial approach to decision making and his thoughtful judicial temperament and know his carefully crafted opinions, we who are his colleagues are convinced that he will also be a great justice.

If Judge Alito is confirmed, as I believe wholeheartedly he deserves to be, he will succeed a justice who has gained a reputation as a practical justice whose resistance to ideologically driven solutions has positioned her as a swing vote on the Court.SEN-JUDICI-PNL-II-THURS PAGE 16 01/12/2002 .STX

And as has been heard several times in this hearing, Justice O'Connor, in 1995, described her approach to judging. What she said then is even more important today. And I quote: "It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis. The only way for judges to mediate these conflicting impulses is to do what they should do anyway: stay close to the record in each case that appears before them, and make their judgments based on that alone."

And knowing Sam Alito as I do, I am struck by how accurately these words also describe the way in which he has performed his work as a United States Circuit judge. And that is why, with utmost enthusiasm, I recommend that he be confirmed as an associate justice on the Supreme Court.

And thank you, Mr. Chairman.

SEN. SPECTER: Thank you very much, Judge Aldisert.
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