The Three Alitos

Article excerpt

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, Alitos 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. …