A Word from a Former Alito Clerk

Blue Mass Group has an interesting interview with Kate Pringle, a former clerk for Samuel Alito as well as for Stephen Breyer and Sandra Day O'Connor (how's that for a resume?). Unlike Alito, Pringle is a liberal and a Democrat who was highly involved in John Kerry's campaign. Nonetheless, she is a staunch supporter of Alito's nomination. To some extent, that's inevitable; former clerks tend to be fiercely loyal to the judges they clerked for. But Pringle offers some pretty good arguments for her position as well:

I wondered what Pringle meant by a "strong conservative intellectual approach." She elaborated: "he cares a lot about the words of the statute or constitutional provision or contract" involved in the case. "He starts first and foremost with the words." Pringle added that Alito is "not interested in being expansive with judicial opinions. He decides the specific issue in front of him, and is not inclined to go beyond that."

The "deciding specific issues" approach to judicial decisionmaking has been associated with the Justice that Alito would replace, Sandra Day O'Connor. O'Connor is known for writing very narrow opinions that resolve little more than the precise set of facts presented to the Court - and some have criticized her for that practice, preferring that Justices write expansive opinions laying down broad rules for future cases. I asked Pringle whether she thought Alito was in "the O'Connor mold" in this respect. She thought that he was. She described Alito as "interested in focusing on the immediate case at hand. He is not someone who is eager to reach out and grab broad principles and institute them separate and apart from the case."...

Moving into more dangerous territory, I asked Pringle whether she had any sense of how Alito would apply stare decisis (the doctrine counseling respect for precedent) on the Supreme Court. Her view is that, because of Alito's tremendous respect for the Supreme Court as an institution, he is unlikely to overturn precedent lightly. Rather, he will grapple with existing precedent, even when he might have decided the original case differently, and will give considerable importance to the opinions and approaches of the Justices that came before him. She thought that overall Alito's approach would probably resemble that described by now-Chief Justice Roberts in Roberts' confirmation hearings. As to specifics, Pringle was not willing to hazard a guess as to whether, given the chance, Alito would vote to overrule hot-button cases like Roe v. Wade and Lawrence v. Texas....

Pringle's bottom line is a pragmatic one. Of course, Alito would not have been on John Kerry's or any other Democrat's short list for the Supreme Court. But, as we all know, John Kerry didn't win in 2004, nor did the Democrats capture a majority in the Senate. Given that reality, Pringle said, "I'd rather have someone who has real intellectual ability, who has experience, who has a history of making these kinds of difficult decisions, and who has demonstrated respect for the Court as an institution, than a stealth candidate." And given the other candidates on the "conservative short list," Pringle is optimistic about Alito. She says that he will treat every case fairly, and that "we'll be proud to have him on the Court."

Take this as you will. A clerk gets to know far more about a judge than probably anyone else, including his fellow judges and, in matters relevant to their job, even their family. Also worth looking at is this essay by liberal legal scholar Cass Sunstein in the New Republic (requires registration, but available on BugMeNot). Sunstein writes:

A reading of the opinions of Samuel Alito reveals that he is an unexpectedly interesting judge, with a conservative record that shows a very different tone from that of Justice Scalia or Justice Thomas. He does not press ambitious claims, and each of his opinions is firmly anchored in the law. At the same time, his overall pattern of votes shows a great deal of deference to established institutions.

Unlike, say, Justice Scalia, Judge Richard Posner, and Judge Michael Luttig, Alito avoids theoretically ambitious claims. He rarely asks for large-scale reorientations of the law. His opinions are both measured and low-key. He does not insist that the Constitution must mean what it meant when it was originally ratified. If each opinion is read in isolation, the evaluation, even for those who disagree, would almost always be this: solid, more than competent, unfailingly respectful, and plausible.

Moreover, Alito has not displayed the strong libertarian streak of many conservatives, including, say, Justice Thomas and Judge Luttig. Alito has sided with large institutions in a remarkably wide range of difficult cases, involving colleges, zoning boards, immigration authorities, employers, and the criminal justice system.

For some of you, that will probably be seen as good news. For me, it's mixed. On the one hand, I don't want a Scalia-type pseudo-originalist and I'm relieved he is not that type of judge. On the other hand, the last thing I want is a judge who gives great deference to governmental institutions. I do want a broad and ideological approach that is open to sweeping changes in constitutional law, just not in the direction of conservative originalism, which I reject. Which puts me in the minority of a minority, I suppose. Still, some may find this information useful.