Alito Impresses One-Time Brennan Law Clerks

WASHINGTON – With a vote on Samuel Alito’s Supreme Court nomination expected early next week, several prominent New York lawyers, including three former law clerks to the liberal Justice Brennan, disputed the New York Times’s urging that Americans should be frightened by the prospect that Judge Alito will soon sit on the high court.Meanwhile, a split over the impending vote developed between Senate Democrats, with some calling for a filibuster and others backing Judge Alito’s confirmation.In an editorial Thursday, the Times called on Democrats to filibuster the nomination, writing that Judge Alito “holds extreme views about the expansive powers of the presidency and the limited role of Congress.” The Times wrote that the prospect of seating Judge Alito on the Supreme Court would be more “frightening” than the prospect of filibustering a high court nominee.Two Democratic senators, Robert Byrd of West Virginia and Tim Johnson of South Dakota, apparently disagreed, announcing their intention to support Judge Alito’s confirmation. The move brings to three the number of Democrats who have said they will vote for the nominee. But a few other Democrats appeared ready to stiffen their resistance, with Senator Kerry of Massachusetts calling for a filibuster.Lawyers interviewed by The New York Sun roundly dismissed the Times’s suggestion that Judge Alito’s confirmation would be disastrous.Judge Alito “is certainly not out of the mainstream,” a litigator at the firm Kaye Scholer and a former clerk to Justice Brennan, Peter Fishbein, told the Sun in response to the Times’s editorial. Mr. Fishbein described such criticism of Judge Alito as “overkill.”“Alito is not someone I would have nominated,” Mr. Fishbein said. But Mr. Fishbein said that in order to get a nominee he would like, he would have to elect a president with whom he agreed.A principal at the private-equity firm Leeds Equity Partners and another former Brennan clerk, Jeffrey Leeds, was more direct in his criticism of the Times.“This kind of opinion writing is just irresponsible,” Mr. Leeds told the Sun. Mr. Leeds called the idea that Judge Alito might be unqualified “nonsense.”Mr. Leeds said that he thinks Judge Alito possesses the key qualifications for a seat on the Supreme Court, such as intelligence and a studious temperament.Mr. Leeds also described the broader confirmation fight as “hugely disrespectful of the work of the court,” since it reduces serious legal issues down to political points.A legal writer and a third former Brennan clerk, Michael Rips, suggested that the Times editorial board consult Aristotle in respect of courage in the face of fear.“Liberals should manage their fear so as to see that this man is a thoughtful jurist,” Mr. Rips told the Sun.“There’s a natural tendency to be fearful” in a situation like this, Mr. Rips said, “as there was for conservatives on Ginsburg,” a reference to the nomination of liberal Justice Ginsburg.Mr. Rips noted that the vast majority of cases that come before the courts are not ideologically controversial, but their outcomes can affect millions of people.Partisans may “have to overcome their fear on the particular issue that matters to them,” such as abortion, to approve a jurist who will rule well in the other uncontroversial cases, he said. Brennan, for whom Messrs. Rips, Fishbein, and Leeds clerked,was one of the judges who issued the landmark Roe v. Wade abortion decision in 1973.A retired New York Supreme Court judge and former prosecutor, Leslie Crocker Snyder, expressed concerns about Judge Alito’s ideology.“Judge Alito is qualified, but I’m distressed someone more moderate wasn’t nominated,” Judge Snyder told the Sun. She also said she would have preferred Mr. Bush had named a minority or a woman.However, Judge Snyder, who ran unsuccessfully against Robert Morgenthau last year for the job of district attorney of New York County, said that a filibuster “wouldn’t be productive at this point,” and seemed resigned to Judge Alito’s confirmation.A partner at Covington & Burling and author of the book “The Death of Common Sense,” Philip Howard, said that although he is not as conservative as Judge Alito, the nominee should be confirmed.Judge Alito exhibits “exemplary” qualities of “character and approach,” Mr. Howard told the Sun. “I don’t see him as an ideologue,” he said.In response to the Times editorial, Mr. Howard said that the opinions for which Judge Alito has been criticized “are judicious in light of the precedents he was working with,” and suggested that it is incorrect to view Judge Alito as an extreme ideologue.Mr. Howard said he is not “frightened” by the prospect that Judge Alito will be confirmed.“It’s correct that he’s considered a conservative,” Mr. Howard said. “But the American people elected a conservative president.”A prominent divorce attorney and self-described political independent, Raoul Felder, called the confirmation hearings “a disgrace,” suggesting that they had nothing to do with Judge Alito’s qualifications. In response to the Times’s apparent fright at the prospect of Judge Alito’s accession to the Supreme Court, Mr. Felder said that he is more frightened of “bed bugs and bird flu.”As the debate wound down on the Senate floor and beyond the Beltway, two more Senators declared their intention to vote for Judge Alito’s confirmation. Senator Byrd of West Virginia and Senator Johnson of South Dakota join Senator Nelson of Nebraska, who announced his support last week, as the only three Democrats so far to publicly support the nomination. All three represent states that voted for Mr. Bush in the 2004 election.Senator Byrd delivered a stinging rebuke of the confirmation proceedings in his remarks on the floor. He took particular note of letters he said he had received from his constituents during the process.“In the reams of correspondence that I received during the Alito hearings, West Virginians who wrote to criticize the way in which the hearings were conducted used the same two words,” he said. “They called them an ‘outrage’ and a ‘disgrace.'”Although he did not criticize any of his colleagues by name, he chastised the Senate for politicizing judicial nominations.“Have we finally come to the point where our nation’s assessment of a Supreme Court nominee turns more on a simple-minded sound bite or an exploitive snapshot than on the answers provided or withheld by the nominee?” Senator Byrd said in his floor speech.“The Framers presumably had something better in mind when they vested the Senate with the authority to confirm ‘judges of the Supreme Court,'” he said.Senator Johnson was somewhat more muted in his support, issuing a brief statement in which he said that “Judge Alito would not have been my pick for the Supreme Court,” but said that Judge Alito’s views “fall within the mainstream of contemporary conservative jurisprudential thinking.”Senator Kerry, speaking from the World Economic Forum in Davos, Switzerland, told CNN that he is trying to gather enough support from his colleagues to launch a filibuster against the nominee. Senator Kennedy, also of Massachusetts, later issued a statement supporting the filibuster attempt.Democrats would need 41 votes to filibuster the nomination, a procedural tactic that would prevent a final up-or-down vote. They currently control 44 seats, but the move is not expected to succeed.One of the three Democrats to announce support for Judge Alito, Senator Nelson of Nebraska, was one of 14 senators who last year signed an agreement forestalling the use of the filibuster in judicial nominations except in “extraordinary circumstances.” Senator Nelson’s support seemed to suggest that at least some of those 14 would not support a filibuster in this case, leaving open the door to a separate procedural tactic Republicans could deploy to defeat a filibuster.Senator Kerry’s announcement could, however, put pressure on Senator Clinton, who has announced she will vote against Judge Alito in the up-or-down vote. The existence of even a marginal filibuster attempt could force her to navigate between fierce opposition to the nomination among interest groups on the left whose support could be important in Senator Clinton’s expected 2008 presidential bid and more moderate forces within the Democratic party that believe a filibuster would be a strategic and political mistake.

Alito Impresses One-Time Brennan Law Clerks

Alito Impresses One-Time Brennan Law Clerks

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