Date: January 13, 2006
Senator: Witness - Fried
Topic:
Contents
SPECTER: Thank you very much, Ms. Nolan.
Our next witness is Professor Charles Fried of the Harvard Law School, an expert in the areas of constitutional, legal and moral philosophy. From 1985 to 1989, he was Solicitor General of the United States, and from 1995 through 1999, he was an Associate Justice of the Supreme Judicial Counsel of Massachusetts.
He holds a bachelor's degree from Princeton, a doctor of law from Columbia, and both a bachelor's and master's from Oxford University.
Professor Fried, in his capacity as Solicitor General, was Judge Alito's superior when Judge Alito worked in that office.
Thank you for joining us, Professor Fried, and we look forward to your testimony.
FRIED: Thank you, Chairman Specter, and I thank the members of the committee for inviting me.
I think what I can most usefully do is cast some light on Judge Alito's -- and if I slip into "Sam," please forgive me, because we were a small and very collegial and friendly office -- Judge Alito's work in that office.
The Reagan administration no doubt had a point of view about the law, just as did the FDR administration in 1933, or the JFK administration in 1961. That is not unusual. That's what elections are about.
Part of that view encompassed the notion that the lower courts had gone too far in limiting the ability of law enforcement, that the lower courts had moved too far away from an appropriate view of Affirmative Action, as expressed by Justice Powell in Bakke, toward quotas. And, I suppose, emblematic of the notion that courts sometimes just make things up was the notion that Roe v. Wade was incorrectly decided, a notion which, may I say, was shared by people across the political spectrum. Professor Paul Freund, Archibald Cox expressed that view as late as 1985.
The first job of the staff of the Solicitor General's Office was to make sure that when the solicitor general presented the solicitor general's clients' position to the Supreme Court, this was done in a professional, correct and respectful way.
That office had career lawyers, some of whom stretched back to the time of Lyndon Johnson. I myself appointed as deputies people who I knew to be Democrats -- liberal Democrats. None of that bothered me or bothered them, because we were a professional office and they understood that their work was professional work. That is exactly how Judge Alito viewed his work.
If I look at the example that has -- two examples -- that have been much featured in these discussions, his memo to me in the Thornburg case on Roe v. Wade, it is said that he argued that Roe v. Wade should be overruled. He did not -- you need only read that memo, because he said in that memo that we should not argue that Roe v. Wade should be overruled. I didn't follow that advice, but that was what the advice was.
Similarly, it is said that he argued for the absolute immunity of the Attorney General in connection with wire taps. He did not. What he said was, I don't question that immunity, but we should not propose that argument. We should not make that argument to the court.
In 1985, he wanted a job in the administration, and at that point he took on a different role and he spoke in a different tone of voice. I think that's perfectly understandable and appropriate. And when, 15 years later, he became a judge -- when, 15 years ago he became a judge -- he once again assumed a different role.
His whole career shows that he understands the difference between a professional lawyer, an advocate and a judge. And no more eloquent testimony of that understanding can be had than the wonderful testimony of his colleagues -- Democrat and Republican, liberal and conservative -- who served with him for those 15 years.
I believe that it's perfectly appropriate for this panel, for this committee, to have probed Judge Alito's disposition. Everybody has a disposition. He is in the mainstream. He tends toward the right bank of the mainstream, I agree.
When this Senate approved two wonderful judges to be justices, Justice Breyer and Justice Ginsburg, it was perfectly plain that they tended toward the left bank of the mainstream, and they were confirmed and properly so. I believe Judge Alito should be, as well.
Contents
Prev
Next
Last
