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Judicial Issues Forum | No. 7

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A Governance Studies Event

Scrutinizing Judge Alito: Does the Process Work?

U.S. Judiciary, Judges

Event Summary

The stakes are extremely high as federal appeals court Judge Samuel A. Alito Jr. continues to face U.S. Senate Judiciary Committee scrutiny as would-be successor to Justice Sandra Day O'Connor.

Judicial Issues Forum

Event Information

When

Tuesday, January 17, 2006
10:00 AM to 11:30 AM

Where

Falk Auditorium
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC 20036
Map

Contact: Brookings Office of Communications

E-mail: communications@brookings.edu

Phone: 202.797.6105

The Supreme Court's liberal-conservative balance is at a tipping point on issues ranging from abortion, affirmative action and religion to the President's claims of sweeping war powers. And the confirmation battle now raging is akin to a presidential election campaign, with opposing interest groups spending millions on television ads and the air thick with learned analyses and dueling distortions.

On Jan. 17, 2006, the Brookings Institution hosted a discussion of the Alito battle and what it says about the state of the confirmation process. This forum was the eighth in an ongoing series of public discussions sponsored by the Brookings Governance Studies Program's Judicial Issues Forum.

Stuart Taylor, Jr., a nonresident senior fellow at Brookings and a writer for National Journal and Newsweek, moderated the panel. Ralph Neas, President and CEO of People for the American Way, and Adam Ciongoli, a former law clerk to Alito and counselor to former Attorney General John Ashcroft, offered differing perspectives on Alito and the state of the confirmation process. Brookings senior fellow Sarah Binder put the current battle into historical context with insights into the relationship between Congress and the Court. And Benjamin Wittes, an editorial writer at The Washington Post, discussed the current climate of confirmation hearings.

Transcript

SARAH BINDER: I would just step back from some of the comments that have been made today on this question of how the process works or not works, just to throw in again the idea that the institutional rules of the game here and the practices in the Senate evolve with the interests of the senators. What do I mean here? How does it account for what seems to be a more politicized process? We've heard, well, maybe it was Karl Rove, maybe it was the action of organized interests. I would step back and point to things we haven't talked about today.

First, the shape and the structure of the party system matters a lot for how these confirmation hearings and the process unfold. We have very ideologically polarized, regionally divided parties. And it makes a difference for the types of questions they bring to bear and the types of answers that they want from nominees. So getting rid of the hearings, keeping the hearings, I don't think it matters all that much. We would still have these forces on senators and on the nominees.

That's the first general factor. The second I think we sometimes lose sight of is the role of the courts and the types of questions courts are being called on to answer. We started in the 1960s with more criminal justice questions, 1970s, social issues, Roe v. Wade and others. We shouldn't be surprised that senators put more energy and effort into trying to figure out how these nominees are going to act on the Court. And it looks politicized. We might attribute it to other motives—the Roe motive, the organized interests' motives. The bottom line is the parties are different today and the issues that the courts are called on to talk about and to weigh in on, those are different today. And I think it has changed, from our perspective, the character of the confirmation process and thus raises concerns about whether or not it's really working.

Read the full transcript (PDF—119kb)

Participants

Moderator

Stuart Taylor, Jr.

Nonresident Senior Fellow, The Brookings Institution
Columnist, National Journal; Contributor, Newsweek

Panelists

Adam G. Ciongoli

Counselor to the U.S. Attorney General (2001-2003
Law Clerk to the Hon. Samuel A. Alito, Jr., U.S. Court of Appeals, Third Circuit (1995-1996)

Benjamin Wittes

Fellow and Research Director in Public Law, Governance Studies

Ralph G. Neas

President and CEO, People For the American Way & People For the American Way Foundation

Sarah A. Binder

Senior Fellow, Governance Studies

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