pageok
pageok
pageok
Carter Phillips on Sam Alito:
C-Span's "America and the Courts" series has a fascinating interview with Carter Phillips, one of the top members of the Supreme Court bar, about his friend and former co-worker Sam Alito. The interview begins at the 23-minute mark and lasts about 35 minutes. Phillips and Alito were Assistants in the SG's Office together in the early 1980s; as Phillips explains early in the interview, they met when they both interviewed at the SG's Office on the same day, during the tenure of Carter SG Wade McCree.

  Among the interesting tidbits in the interview, Phillips offers his take (at the 28-minute mark) on whether Alito's memos from the SG's office should be read as indicators of how Alito would rule as a Justice. Phillips stresses that the attorneys at the SG's office were advocates, not judges. He suggests that the Assistants in the office saw themselves as civil servants representing the institutional interests of the U.S. rather than "independently judging what [they thought was] the right answer."

  I also thought it was interesting that Alito was hired by and started under Carter SG Wade McCree, not Reagan SG Rex Lee; Alito started in June '81, according to Phillips, two months before McCree departed and was replaced by Lee.
Long time listener....:
I'm not sure I understand when the "right answer" would differ from the "institutional interests of the US". Isn't that institutional interests to best serve American citizens? Wouldn't a conception of the "right answer" also need to be aimed at, at some level, the best interest of the same people?
12.26.2005 11:14am
dk35 (mail):
I really can't see how anyone should expect the American public to believe anything that Alito supporters are saying right now. Obviously, they want Alito in to promote their backwards agenda, and are willing to say anything they need to say to achieve that goal.

This "I was acting as an advocate, not giving my own opinion" line will be repeated ad nauseam for the next few weeks, and it quite simply a lie.

Let's move on and talk about something else.
12.26.2005 11:21am
Defending the Indefensible:
If a man lied to get a job, and does not condemn his past behavior as having been wrong, then it can be presumed that he will lie when applying for another. In truth, we do not know whether he was expressing an honest opinion then and lying about it now, or lying then and being honest about it now, because he does not condemn the lie. Discredit him, he cannot be trusted.
12.26.2005 11:29am
magoo (mail):
Long time listener -- Mr. Phillips provides a brief, excellent example of when the institutional interests of the U.S. might differ from the advocate's personal views of what the "right answer" is, from the realm of criminal law. Lawyers in the SG office, and throughout DOJ generally, in every Administration regardless of political stripe, advocate that criminal convictions be upheld on appeal, even if the advocate might rule differently if she were a judge. Or to take an example from civil proceedings, DOJ lawyers might well be required to argue against an adversary's standing, even if the advocate would find standing if she were a judge. ....happens all the time, in every Administration
12.26.2005 12:00pm
Kate1999 (mail):
Magoo,

You're being unfair here -- you actually listened to the interview, and you're making an actual argument. To make it a fair fight, you would have to just give a visceral reaction based on your political views without acually listening.

dk35,

I like how you have an unthinking partisan reaction against your opponents' alleged unthinking partisan reactions. Or is your point that we are not supposed to believe you?

Defending the indefensible,

No one is suggesting that Alito lied in his memos. The only issue is whether his recommendations as to the positions the U.S. should take in litigation are Alito's personal views.
12.26.2005 12:11pm
David M. Nieporent (www):
I don't think anybody, Alito least of all, suggested that he "lied." Many of the people who are condemning him simply do not understand the difference between advocate and arbiter. As an attorney, I make the strongest non-frivolous argument I can make for my client's position. I am not saying that I would necessarily rule that way if _I_ were the judge. I am not looking for the _best_ interpretation of the law; I am looking for a possible, plausible interpretation that will allow my client to prevail.

I have written briefs which take positions I disagree with, both in terms of what public policy should be and in terms of how I think a particular law ought to be interpreted. I was not "lying" when I wrote them, and I am not "lying" when I now say I disagree.

Moreover, to apply the advocate/arbiter dichotomy to situations Alito might face, as an advocate, I have no moral, ethical, or legal obligation to care about stare decisis. If there's a precedent that hurts my client, my only concern is that it be overturned. I don't care about any of the principles behind stare decisis. A judge has other factors to worry about.

In other words, there are three issues.

1) What do I personally think the law should be?
2) What does my client need the law to be?
3) How would I rule as a judge?

These can all conflict without any "lying" taking place.
12.26.2005 12:13pm
frankcross (mail):
Of course there's a difference between advocate and arbiter.

But does anyone have any basis for an opinion that Alito does not personlly share the views he expressed as an advocate? He'll have the opportunity to answer this himself at hearings. But most of those opinions seem consistent with what Alito reputedly believes. And I don't understand why conservatives are running away from those opinions.
12.26.2005 12:27pm
AF:
This post is a classic piece of advocacy posing as neutrality -- in a word, propaganda -- for Alito's nomination

<i>C-Span's "America and the Courts" series has a fascinating interview with Carter Phillips . . . .</i>

So the interview is posted because it's "fascinating." It is not intended to expressly or impliedly endorse any viewpoint on any matter, including but not necessarily limited to the nomination of Samuel A. Alito to the United States Supreme Court.

<i>Phillips and Alito . . . met when they both interviewed at the SG's Office on the same day, during the tenure of Carter SG Wade McCree.</i>

Alito served under a Democrat!! He's a moderate! Not an extremist. Not that the post expresses any opinion on this. It is purely for informational purposes. But it is fascinating, isn't it?

<i>Phillips stresses that the attorneys at the SG's office were advocates, not judges. He suggests that the Assistants in the office saw themselves as civil servants representing the institutional interests of the U.S. rather than "independently judging what [they thought was] the right answer."</i>

Well, if Carter Phillips says it, it must be true. After all, it's not like he has any vested interest in helping Alito's nomination. I mean, true, Alito appears highly likely to be seated, and Phillips appears frequently in front of the Supreme Court, but surely he wouldn't let advocacy concerns get in the way of his "independently judging what [he thought was] the right answer." Well, not unless he was in the SG's office. In any case, even if Phillips does have some axe to grind, Orin's post clearly doesn't. It merely presents Phillips's point of view, which is surely "fascinating."

<i>I also thought it was interesting that Alito was hired by and started under Carter SG Wade McCree, not Reagan SG Rex Lee . . .</i>

Did I mention that Alito served under a DEMOCRAT? Not that I have any particular point to make. I'm just really fascinated.
12.26.2005 12:28pm
A. Zarkov (mail):
DK35

If you were hiring a lawyer to represent you, do you want him to be your advocate, or do you want him to do what he really believes? A lawyer is duty bound to provide his client was aggressive advocacy so long as he does not perpetrate a fraud on the court. It's not his job to seek ultimate truths, or the best interests of the public.
12.26.2005 1:02pm
magoo (mail):
AF -- One of the reasons I visit here is to pick up new info, and no one does a better job at providing new info than Prof. Kerr. I've read tons of material on Alito, and this is the first I've heard that he was hired by General McCree. Prof. Kerr describes this datum as "interesting," and it most certainly is. He reserved the word "fascinating" to describe the interview as a whole, and for those of us geekish enough to enjoy C-SPAN interviews, I would tend to agree.
12.26.2005 1:22pm
A. Friend:
"Among the interesting tidbits in the interview, Phillips offers his take (at the 28-minute mark) on whether Alito's memos from the SG's office should be read as indicators of how Alito would rule as a Justice. Phillips stresses that the attorneys at the SG's office were advocates, not judges."
Yes, it is truly interesting that a supporter of Alito would make the argument that his SG memos don't mean anything. Glad you agree that this is so interesting.
12.26.2005 1:28pm
AF:
magoo, I agree with everything you wrote. In fact, I'd raise you one and say that Orin is one of the very best, if not the best, legal bloggers out there. But none of this contradicts what I wrote. Information can be new, and interesting, and yet presented to support a political agenda. My only objection to this post is that it is apparently intended to seem neutral, when it is not. Perhaps I'm wrong about that; perhaps Orin would admit that he is trying to influence readers to support Alito's nomination. In which case, the joke's on me.
12.26.2005 1:34pm
Bruce Wilder (www):
It is a reality of conservative politics, that many conservative desiderata are unpopular, for the simple reason that much of what conservatives want would be contrary to the material interests of a majority of the American People. In power for twenty-five years, and in undisputed control of the Federal government for five, with the foundations of the Republic crumbling under their weight, conservatives remain very good at advocating the unpopular and ill-advised by expedients: distraction, deception, etc. As DF has eloquently pointed out, Orin's post is an example of such expedient advocacy, advocacy of policies and goals, which remain conveniently out of sight.

Nieporent, Zarkov, magoo have made clear the distinction between the roles of arbiter and advocate, without, again conveniently, making any assertions regarding what Alito's views might be.
12.26.2005 1:40pm
Justin (mail):
This is a useless debate.

Did anyone here not go to law school and either go through the clerkship process or know people who did?

If you're either of the above, you know damned well that Alito was one of the most conservative circuit judges in the country. To think otherwise is silly - why else would Bush appoint a white male whose got a history of being conservative, unless he was ACTUALLY very conservative?
12.26.2005 1:48pm
Justin (mail):
BTW I agree with (probably every other, including) the above liberal that Orin Kerr is my favorite VC blogger, and I will disagree with him in one small instant - I don't think Kerr is trying to disguise his advocacy, he simply realizes that advocacy works best when it's done with a light touch.
12.26.2005 1:53pm
magoo (mail):
AF -- You're on an avowedly libertarian site; I'm not sure why you and others assert there's a pretense of "neutrality" here. There's no such pretense. You can find your version of "neutrality" over at ACSblog.

I don't find the Phillips endorsement particularly illuminating given their longstanding friendship, but what I do find immensely illuminating is how the many, many liberals who have actually worked with Alito are coming forward to say that yes, he's conservative, but he's also a straight shooter who do his best to remove politics from the equation and apply the law to the facts. The Chief had many similar endorsements from liberals during his recent confirmation process. So far, I have yet to hear anyone who has worked with Alito come forward to say that he's an ideologue with an agenda.
12.26.2005 2:29pm
David M. Nieporent (www):
The problem is that people aren't trying to prove Alito is "conservative" with these memos. The fact alone that he wanted to work in the Reagan administration makes that likely, and people who have worked for or with him have certainly said he is. (A far more compelling argument than Justin's "He must be or Bush wouldn't have nominated him." Somehow I don't see Justin routinely deferring to Bush's judgment.)

The lesser problem is that people are trying to prove that he has particular specific personal views on specific issues, based on these memos. (Worse, based on media summaries of these memos, but that's another story.)

The greater problem is that people are insinuating that because he (allegedly) has these specific views, he'd rule a specific way as a Supreme Court justice.

If, e.g., one wants to argue that Alito is pro-life -- well, the memos alone provide some evidence, but hardly proof. But pretending from those memos that one knows that, twenty years later, he'd vote to overturn Roe is ludicrous at best, dishonest at worse.
12.26.2005 2:51pm
byomtov (mail):
In Alito's case there is less to this distinction between arbiter and advocate than his supporters believe.

First, as Frankcross points out, here is little reason to doubt that the legal positions Alito argued are not ones he actually agrees with. In fact, he said as much in at least one of his memos.

Second, the fact that he sought and held a job in the Reagan Administration certainly suggests that he holds quite conservative views. Let's stop pretending that he was simply a private practitioner who had Reagan walk in the door as a client one day and advocated for him as best he could.
12.26.2005 3:38pm
Stuart (mail):
I think the big point that a lot of lefties are missing here is that judicial conservatives of a certain stripe tend to care a lot more about the integrity of the process than about the results reached. So far as I can tell, Roberts and Alito are both of this breed, much like the second justice Harlan. That means they are much less likely to go along with the sort of approach that Scalia and Thomas have, but are more likely to rule in a very restrained way. So being conservative judicially doens't necessarily mean driving to politically conservative results as much as it does deferring to other branches and being very reluctant to derive new rights. Much of the opposition to Alito collapses political conservatism with judicial conservatism. The two are not the same by a long shot.
12.26.2005 4:04pm
Fishbane (mail):
I'm surprised at how acrimonious this became. Orin has his agenda, and is not dishonest about it. What's wrong with that? Subtle persuasion is nothing less than the norm for quality discourse. That I, personally, really don't want Alito on the Court doesn't mean that Orin can't try to convince me that I'm wrong, and I'm glad that he continues to try.

It would be a boring world if we all agreed.
12.26.2005 4:19pm
Justin (mail):
David, I'd say you arguing that we DON'T know the way Alito will vote on Roe v. Wade is "ludicrous at best, dishonest at worse." I say this as a liberal who thinks Roe was wrongly decided. At some point, you need to stop relying on "theoretically possible" arguments and join the real world.

PS - The second was simply explanatory. The reason I know Alito is a rabid conservative is because I went through the clerkship process, and his reputation widely preceded him from former 3rd circuit clerks (his and others) who extolled his conservative credentials along with his capable mind. Everyone knew that a FedSoc guy could get ahead with an Alito nomination...and a non FedSoc guy shouldn't bother trying.
12.26.2005 4:32pm
Bruce Wilder (www):
Fishbane: Orin ventured a certain line of argument, and had it ably deconstructed by AF; it is what I hope for, on VC.

Stuart: what I see in Alito is a profound authoritarianism; I would like to see what evidence you have that he is inclined to "deferring to other branches and being very reluctant to derive new rights". My greatest fear is that Alito will see John Yoo as some sort of latter day founding father. If Alito is, indeed, inclined to defer to the President and to deny that any person has any rights a President is bound to respect, then I think there are grounds for opposing his confirmation strenuously.
12.26.2005 5:38pm
David M. Nieporent (www):
David, I'd say you arguing that we DON'T know the way Alito will vote on Roe v. Wade is "ludicrous at best, dishonest at worse." I say this as a liberal who thinks Roe was wrongly decided. At some point, you need to stop relying on "theoretically possible" arguments and join the real world.
Well, I'd buy that argument a lot more if it weren't for the fact that I had heard it before.... when Souter was nominated, when Kennedy was nominated. If we were in a vacuum I have no doubt that Alito would vote against constitutionalizing the right to abortion. But we're not in a vacuum. We're in the "real world," where justices, other than Thomas, take stare decisis seriously. That doesn't mean they aren't willing to abandon it; see Lawrence v. Texas, for instance. But we cannot cavalierly decide that just because someone has a certain view, that he will rule that way.
12.26.2005 6:51pm
AF:
VC is conservative, but Orin generally professes to be nonpartisan. Like I said, though, if everyone else recognizes the post as a piece of conservative advocacy, then I was wrong. I read it as conservative advocacy posing as nonpartisan commentary.
12.26.2005 7:13pm
Justin (mail):
Kennedy was known to be a liberterian, and Souter was literally a blank slate. They're both irrelevant to this discussion, nice try.
12.26.2005 7:19pm
Dave Hardy (mail) (www):
For whatever benefit--

In my years at Dept of Interior HQ, I noted rather different orientations among legal shops.

Interior: we generally represented our client, in terms of trying to win. (I say generally because some superiors would sometimes be willing to lose, or take a big loss of losing, rather than advance an argument they disliked).

Justice (at least the division that represented us): much more hinkey about advocating a legal theory that (regardless of its legal merit, support, or probability of winning) went against their grain or their sense of the "spirit of the statute."

Solicitor General: had only a couple of interactions with them. In one I remember being told "We see things differently. Your interest is in defending your client; ours is in guiding the evolution of caselaw."

I'm talking 1982-1991, Reagan-Bush years, and almost all of the above were liberal, green, Democrats. I think that's because it took years to work one's way up in the bureaucracy (most of our managers had started under Carter) and also Republicans seemed to show little interest in staff hiring decisions.
12.26.2005 8:10pm
Dave Hardy (mail) (www):
For whatever benefit--

In my years at Dept of Interior HQ, I noted rather different orientations among legal shops.

Interior: we generally represented our client, in terms of trying to win. (I say generally because some superiors would sometimes be willing to lose, or take a big loss of losing, rather than advance an argument they disliked).

Justice (at least the division that represented us): much more hinkey about advocating a legal theory that (regardless of its legal merit, support, or probability of winning) went against their grain or their sense of the "spirit of the statute."

Solicitor General: had only a couple of interactions with them. In one I remember being told "We see things differently. Your interest is in defending your client; ours is in guiding the evolution of caselaw."

I'm talking 1982-1991, Reagan-Bush years, and almost all of the above were liberal, green, Democrats. I think that's because it took years to work one's way up in the bureaucracy (most of our managers had started under Carter) and also Republicans seemed to show little interest in staff hiring decisions.
12.26.2005 8:10pm
Dave Hardy (mail) (www):
I'm not sure I understand when the "right answer" would differ from the "institutional interests of the US". Isn't that institutional interests to best serve American citizens? Wouldn't a conception of the "right answer" also need to be aimed at, at some level, the best interest of the same people?


Well.... I can think of a concrete example. Question: does designation of federal land as "wilderness" entitle it to water rights under western state's laws (as creation of a military base, etc. would)? We had a BIG fight over that one. The wilderness statute had a clause to the effect that designation as wilderness would not affect water rights. OK, that sure sounds simple. But a word game could be played to the contrary--aha, if designation would have created rights before the statute, and the statute just says it would not affect water rights, then designation creates water rights notwithstanding!

The green end of Interior loved that argument, as did Justice, nothwithstanding violation of several canons of statutory construction. I dug out the statutory history. Congress had put it in to satisfy several western water user associations who were concerned that designation would create water rights.

The green club then created a theory (without a speck of historical support) that Congress had written it that way so as trick the water user groups. Make them think they got something, then take it away. So now we're construing the statute on the theory that the statutory history of congressional intent is false? I dug into National Archives and found the original correspondence, showing clearly that the groups had expressed their concerns, and the committees had written back to assure them things had been resolved and there was no cause for concern.

We won out in the end... but here's thing... I think the "right legal answer" was that water rights were not created. I think the "client advocacy" position was complicated. We represented the Secretary, and the Secretary liked the position. On the other hand, the managers tended to figure they were representing Park Service, etc., which wanted the water.

Best interest of the people? I suppose that becomes very subjective here. A bureaucrat would tend to put the blinders on -- "What's good for the Park Service is good for the people!"

I liked the attitude of one of the best supervisors (at a political appointment level, since gone career, a Marine JAG colonel and a young one) when a career supervisor started talking policy: "There are hundreds of people in this building whose job is to make policy. I'm an attorney. That's all I am and all I ever wanted to be." He meant it, too.
12.26.2005 8:24pm
OrinKerr:
Curses, my secret plan has been discovered! And I would have gotten away with it, too, if not for those darn VC commenters....

On a more serious note, yup, I'm an Alito supporter. I've known him for 7 or 8 years; clerked on his court (and on a bunch of panels in which he sat) and saw him decide cases; and I've always been very impressed by him both personally and professionally. I assume readers know that I support his candidacy, as I have blogged in support of it before, and can assess my posts on Alito accordingly. I'm certainly not trying to trick anyone.

At the same time, I didn't think the interview was "fascinating" because of what it says about Alito. Alito has been covered so closely by the press that there isn't much else to know about him personally. I thought the interview was fascinating mostly because it gave a rare insight into Carter Phillips. Phillips is one of the best SCT lawyers of his generation, who has something like 50 oral arguments, and I thought it was really interesting to see how he answers questions. He has a natural and understated style; it's perfect for the current Court. My apologies if most VC readers don't find that as interesting as I do; I thought the interview was worth singling out, but others may disagree.
12.26.2005 8:58pm
dk35 (mail):
I just wanted to direct everyone's attention to the Washington Post article yesterday talking about how the Bush adminstration is paying bloggers and other media outlets to publish positive war propaganda.

This, along with the Cato institute flap the other week, raises serious concerns. Now I don't include Orin in all of this, as (in my opinion, for what it's worth) he seems like a true believer in his cause. But, as for others who are tying to cover up Alito's lies, I can't be so certain, and neither should anyone else.
12.27.2005 11:01am
Justice Fuller:
Link, please?
12.27.2005 11:18am
dk35 (mail):
12.27.2005 11:49am
dk35 (mail):
12.27.2005 11:53am
dk35 (mail):
Drats..sorry folks, I'll try one more time here. If the link doesn't work, though, I'm sure you can find it in the washingtonpost.com archive.
12.27.2005 11:56am
dk35 (mail):
Oh, and Kate1999. Nice attempt to deflect criticism onto me, but I am not the one who made a representation of my political views on a job application twenty years ago, only to back away from those views in meetings with senators who disagree with that position (while with a wink and a nod standing by those views in meetings with senators who agree with the position). My character (or lack of it) is irrelevant to the discussion, but Alito's character isn't.
12.27.2005 12:01pm
Chip Smith (mail):
Of interest to this discussion is the case of Michael Bailey of Northwestern University whose book, The Man Who Would Be Queen, became the focus of a similar inquest. Bailey posted a detailed response summarizing the events in a recent issue of the Northwestern Chronicle.
12.27.2005 12:04pm
Chip Smith (mail):
Sorry the above comment was intended for Jim Lindgren's post on censorship and IRBs. Please disregard.
12.27.2005 12:10pm
Kate1999 (mail):
dk35,

Alito did NOT back away from his 1985 job application. Senator Feinstein's poorly phrased comments were yanked out of context by critics, as even Senator Feinstein herself has complained about. Anyway, if you have any actual evidence that Alito "lied," please give it.
12.27.2005 12:11pm
dk35 (mail):
Kate1999...see Defending the Indefensible's comment above (the 3rd comment on this post).
12.27.2005 12:49pm
minnie:
Orin Kerr certainly seems like a brilliant, likable, knowledgeable, articulate individual. As I am not familiar with inside legal circles, could some posters tell me if Orin is himself a potential future SC potential nominee?
12.29.2005 8:46pm
Scott from L-Cubed (mail) (www):
Minnie: Orin is all of those things, and would make a great Justice (even if I might not always agree with him). Unfortunately, I think he needs some more practical legal experience to be considered for a position on a lower court and, eventually, SCOTUS. Right now he's just a "brilliant, likable, knowledgeable, articulate" academic. While that may win him an award from the students at GW, or from the Bloggies, it probably won't win him a seat on a bench.
1.3.2006 6:46pm