Date: January 12, 2006
Senator: Specter
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SPECTER: Thank you, Professor Liu.
Mr. Phillips, how would you evaluate the comments Professor Liu has made?
PHILLIPS: Well, with respect to the memorandum to the solicitor general, I think the notion that that's an individual opinion is not a very apt description, or at least what I viewed my role when I was an assistant to the solicitor general. What we did in that context and in this particular case, what he was doing was proposing that an amicus brief be filed on behalf of the United States in support of the state of Tennessee's position. And that process, you know, you -- I mean it may be that that sentence, and I don't know the context of it to understand it completely, but at that stage all he's doing is proposing that a brief be filed. It would be interesting to see what the ultimate brief said and whether or not it staked out a position quite as aggressive. But because that's part of the deliberative process that goes on, it's the same deliberative process that goes on with respect to the courts.
You know, I mean, I don't disagree that it makes sense to look at the most contentious cases as a legitimate way to examine that, but again, I don't think you can take -- and I do think this is the classic instance of cherry picking. I don't think you can take out one or two specific examples and say this somehow reflects anything about the body of work of a judge who has been on the bench for 15 years and in the face of the testimony we just heard from colleagues of his who spent literally more than decades with him and whose view is that he comes to each case with an open mind and thoroughly analyzes each one and performs this is in a bottom up, not a top down process.
SPECTER: Ms. Axlerod, you know Judge Alito extensively. How would you respond to Professor Liu's testimony?
AXELROD: Well, I had the same reaction concerning the first case that was mentioned when he was in a role as an advocate and was trying to come up with the different perspectives that you would bring to a case as an advocate for the government where your job is to figure out whether or not you're going to be supporting the result below. He was doing his job. And he was doing it appropriately.
And the other cases, I think you have to look at cases more closely than you can in basically a sound byte during a few-minute presentation. You have to look at the arguments that were made on both sides. You have to look at what the standard of review was. You need to see the facts. And I'm sure that the professor analyzed these cases ably, but I would not be persuaded simply by a short summary of them, that the reasoning was unfounded, even if I disagreed with it, which I very well might have without seeing more.
SPECTER: Commissioner Kirsanow, what is your evaluation of Judge Alito's record as it applies to civil rights issues with African Americans?
KIRSANOW: Well, it's -- as I indicated before, it is exemplary. We took a look at several hundred cases -- 121 specifically, and we drew a very broad net to encompass the broadest definition of civil rights possible. But also, we also drew a more narrow net for the more traditional civil rights cases.
The Title Seven cases, where it's more likely that you're going to find an African American plaintiff. And what we saw there is, and I'd refer to Ray v. Marriott. I think it's emblematic of the kind of approach Judge Alito has. He's very precise. Earlier on I heard testimony with respect to is he in favor of the little guy or the big guy? And I think I would hearken back to Judge Alito's opening, where he says that no one is either above the law or below the law.
I don't think that he's outcome driven. He's looking at upholding the law, whether or not that redounds to the benefit of the big guy or the little guy. And I think that's the classic example of someone who hues closely to the most profound protections of civil rights.
SPECTER: Professor Issacharoff, is there any doubt in your mind that Judge Alito will uphold the one man, one vote rule?
ISSACHAROFF: I don't think there's any doubt that he would uphold the one person, one vote as an abstract matter. I think that the broader question that's raised by his earlier comments -- and I heard nothing in these hearings that really addressed this -- is a deeper one about the role of the court in checking the abuses of incumbent power. And so while I don't in any way question that he has as much as all the rest of us have internalized the one person, one vote principle, my reservations would be on the willingness to use judicial power to check malfunctions in the political process.
SPECTER: Professor Gerhardt, you say that the Senate ought to be an active participant in the selection of Supreme Court justices. To what extent do you think that with a heavy campaign on the judicial issue, the president has latitude to pick judges as he wants to on the political spectrum, and how could the Senate really effectuate your idea?
GERHARDT: I think the idea I'm describing is the system that we've got. I don't mean to suggest a different kind of system, Senator. The president may do exactly as you suggest, pick somebody based on whatever criteria he likes.
I'm just suggesting that I think it's perfectly consistent with the structure and history of our constitution for Senators then to provide an independent judgment of his criteria and to assess them on whatever other criteria they think are appropriate.
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