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October 31, 2005

One liberal's positive view of Alito

Katherine (Kate) Pringle is a partner in a New York law firm.  She is also a progressive Democrat who was heavily involved in John Kerry's presidential campaign.  And after she graduated from law school in 1993, she spent a year working as a law clerk to Third Circuit Judge Samuel Alito, Jr.

In light of this morning's nomination of Alito to the Supreme Court, I called Pringle to get her take.  The short answer: she is very pleased with the nomination.  More below.

I asked Pringle to describe what kind of judge Alito is.  She said that Alito is "very thoughtful, very careful, very respectful of Supreme Court precedent.  He has a strong conservative intellectual approach to things, but he is respectful, honest, and straightforward."  She emphasized that Alito is very respectful of the litigants in the case before the court, and also of the opinions of his colleagues - he always looks for common ground and for opportunities to build consensus.  She added that he is "not out there to accomplish a specific agenda," and noted his respect for "the Supreme Court as an institution."  Incidentally, Alito's "respect for litigants" was echoed in this NPR story that interviewed Clark Lombardi, also a former Alito clerk (I do not know whether Lombardi self-identifies as a liberal or a conservative).  Lombardi emphasized that Alito was very aware of the "human side" of cases, and said that Alito never treated litigants as pawns in a grand ideological chess game.

I wondered what Pringle meant by a "strong conservative intellectual approach."  She elaborated: "he cares a lot about the words of the statute or constitutional provision or contract" involved in the case.  "He starts first and foremost with the words."  Pringle added that Alito is "not interested in being expansive with judicial opinions.  He decides the specific issue in front of him, and is not inclined to go beyond that."

The "deciding specific issues" approach to judicial decisionmaking has been associated with the Justice that Alito would replace, Sandra Day O'Connor.  O'Connor is known for writing very narrow opinions that resolve little more than the precise set of facts presented to the Court - and some have criticized her for that practice, preferring that Justices write expansive opinions laying down broad rules for future cases.  I asked Pringle whether she thought Alito was in "the O'Connor mold" in this respect.  She thought that he was.  She described Alito as "interested in focusing on the immediate case at hand.  He is not someone who is eager to reach out and grab broad principles and institute them separate and apart from the case."  I asked whether Alito might alter his case-by-case approach to judging on the Supreme Court.  Pringle didn't think he would.

If you've heard any news stories about Judge Alito, you've heard that his supposed "nickname" (it remains unclear by whom it was bestowed) is "Scalito," the idea being that he's a "little Scalia."  I asked Pringle if she thought this was fair to Alito.  "No," she said, "I never have."  Pringle noted that Scalia and Alito are of course both of Italian ancestry, are both Catholic, and are both conservative, but she thinks there are more important differences between them including temperament, personal style, and the desire (or lack thereof) to find consensus.  (See also this Time article on the "Scalito" comparison.  My own view, FWIW, is that this "Scalito" business is simply due to two conservative judges having Italian surnames that happen to sound similar.  It is therefore insulting and juvenile and should be dropped immediately - if two Jewish judges' names were subjected to similar wordplay, the "joke" would be widely condemned as anti-semitic.)

Moving into more dangerous territory, I asked Pringle whether she had any sense of how Alito would apply stare decisis (the doctrine counseling respect for precedent) on the Supreme Court.  Her view is that, because of Alito's tremendous respect for the Supreme Court as an institution, he is unlikely to overturn precedent lightly.  Rather, he will grapple with existing precedent, even when he might have decided the original case differently, and will give considerable importance to the opinions and approaches of the Justices that came before him.  She thought that overall Alito's approach would probably resemble that described by now-Chief Justice Roberts in Roberts' confirmation hearings.  As to specifics, Pringle was not willing to hazard a guess as to whether, given the chance, Alito would vote to overrule hot-button cases like Roe v. Wade and Lawrence v. Texas.

Pringle, as I noted earlier, is a liberal Democrat.  I wondered whether her ideological bent was an anomaly in Alito's chambers, or whether Alito routinely hired left-of-center law clerks.  She didn't know whether Alito intentionally hires law clerks with diverse viewpoints, but she did know that she was not alone - a good number of Alito's past law clerks are far more liberal than he is.  She also emphasized that Alito was always asking his clerks for their viewpoints, and that he enjoyed the debate when different opinions emerged on particular cases (this, too, was echoed in the NPR interview with ex-clerk Lombardi).

Pringle's bottom line is a pragmatic one.  Of course, Alito would not have been on John Kerry's or any other Democrat's short list for the Supreme Court.  But, as we all know, John Kerry didn't win in 2004, nor did the Democrats capture a majority in the Senate.  Given that reality, Pringle said, "I'd rather have someone who has real intellectual ability, who has experience, who has a history of making these kinds of difficult decisions, and who has demonstrated respect for the Court as an institution, than a stealth candidate."  And given the other candidates on the "conservative short list," Pringle is optimistic about Alito.  She says that he will treat every case fairly, and that "we'll be proud to have him on the Court."

So there you have it: one view of the Alito nomination, from a lefty who knows him well.  FWIW, I'm still undecided on this nomination, because I haven't read nearly as much as I want to read before taking a position.  I'd encourage you to do the same: do at least some of the reading yourself - don't let the interest groups filter it for you.  You can start with this site, which contains links to the full text of several important Alito opinions.  Also, be sure to check out SCOTUSblog (starting with this post), which will be covering this nomination extensively, including detailed discussions of important cases, and which scrupulously avoids pushing an agenda in either direction.

Posted by David at 09:36 PM in Law and Lawyers | Permalink


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» Blog Round-up Update from SCOTUSblog
Blue Mass Group has this post offering one liberal's postive view on the Alito nomination. The post includes commentary from Katherine Pringle, a partner in a New York law firm who is also a progressive Democrat clerked for Judge Alito.... [Read More]

Tracked on Oct 31, 2005 10:44:06 PM

» "One Liberal Who Likes Alito": from The Volokh Conspiracy
David Kravitz of Blue Mass. Group writes: Katherine (Kate) Pringle is a partner in a New York law firm. She is also... [Read More]

Tracked on Oct 31, 2005 10:55:00 PM

» alito -- take a deep breath from f/k/a . . .
"alito" means "breath," as well as "puff," in Italian. . . Go, read Katherine Pringle's assessment of her old boss. [Read More]

Tracked on Nov 1, 2005 12:09:17 AM

» Alito and Levine's Second Rule of Law from Calblog
An observation from National Review's Ed Whelan regarding Supreme Court nominee Sam Alito and Levine's Second Rule of Law: [G]iven the celebrated inconsistency of Justice O'Connor's positions and her steady slide to the Left over the years, most if not... [Read More]

Tracked on Nov 2, 2005 6:33:54 AM

» A Word from a Former Alito Clerk from Dispatches from the Culture Wars
Blue Mass Group has an interesting interview with Kate Pringle, a former clerk for Samuel Alito as well as for Stephen Breyer and Sandra Day O'Connor (how's that for a resume?). Unlike Alito, Pringle is a liberal and a Democrat... [Read More]

Tracked on Nov 2, 2005 10:00:00 AM

» finito con "scalito," per favore! from f/k/a (formerly ethicalEsq)
It's not anti-Italian and I disagree with NIAF and with David Kravitz that it would be anti-semitic to use similar wordplay linking the names of Jewish judges who are seen as [Read More]

Tracked on Nov 3, 2005 1:20:31 PM


Maybe I'm just naive, but...

My own view, FWIW, is that this "Scalito" business is simply due to two conservative judges having Italian surnames that happen to sound similar. It is therefore insulting and juvenile and should be dropped immediately - if two Jewish judges' names were subjected to similar wordplay, the "joke" would be widely condemned as anti-semitic.)

when I began reading about Alito and the Scalito references, I only connected the dots on judicial temperment. I didn't consider for a second the religion, ethnic bacground, or other such non-judicial nonsense. Am I a fool? Perhaps. Or perhaps I rose above the "childish" behavior. Personally, I don't think the joke would be considered anti-semitic in the example above. On the contrary, the Jews I know (mostly the Woody Allen types from Brooklyn) find that kind of joke -- including at the expense of a Jew -- quite funny.

BTW: My father is an Italian American, my mother is an Italian American, and my wife's heritage is Italian. I shop for groceries in The North End every week or so. I'm as Italian as they come for a 3rd generation American, and I didn't even think of the idea that because Scalia and Alito are Italian that the Scalito reference might be insulting. Wop is insulting. Grabbing my sister is insulting. Scalito is not insulting.

Posted by: stomv | Nov 1, 2005 5:39:55 AM

In addition staying undecided until you read more, it's worth staying undecided until the hearings. That's what the hearings are for, after all. The more that people make up their minds beforehand, assuming that the hearings will be meaningless, the more the hearings will be meaningless.

Great note, by the way. I got here from the Language Log, which (like stomv) was primarily interested in the nickname business, but the rest of the post is good meat.


Posted by: Vardibidian | Nov 1, 2005 7:55:13 AM

Great perspective. I'm wary right now but this is food for thought.

(Oh, and I also just attributed the nickname to judicial philosophy and the coincidence of overlapping syllables. Ethnicity wasn't a part of it.)

Posted by: eury13 | Nov 1, 2005 8:28:40 AM

Here is yet another reason to drop this "Scalito" nonsense: it is misleading even on the narrow issue of judicial philosophy.

Posted by: David | Nov 1, 2005 8:40:21 AM

Plus another good reason to drop this 'Scalito' nonsense: it is just childish. I'm a big proponent of taking the high road and not stooping to argumentum ad hominem attacks. If your opponents go negative, attack them on their policies, not with school yard taunts and name calling.

I also agree that coming to a decision about this man 24 hours after he has been nominated is intellectually lazy and servile. Wait for the hearings for chrissake.

Posted by: John O'Brien | Nov 1, 2005 12:13:41 PM

on the other hand, see MyDD today: http://www.mydd.com/story/2005/11/1/03633/3671. "Scalito" was a nickname given him by both friends and foe alike.

seriously, i'm baffled by those who think this is some kind of ad hominem attack or a racial slur, particularly given that his friends have been using it for a long time. it is meant to convey that he is similar to scalia as a judge.

and by the way, wake up and smell the coffee: this guy is not some kind of mild-mannered moderate. the guy supported unwarranted strip searches for 10-year-old girls. why the rush to defend him?

Posted by: shai | Nov 1, 2005 2:33:36 PM

From a tactics standpoint: Do the Dems have a realistic chance of stopping this confirmation?

I don't think so. If they filibuster, they play into the GOP's hands. Since the Democratic Party has offered no alternative vision to the GOP's, they can easily be labeled as nothing more than obstructionists. And if the filibuster fails, the GOP gets a big victory to swing the political momentum.

The reality is, without some damning piece of paper, Alito will most likely be confirmed. The question for the Dems is: how do we make this work for us?

One answer: brand Alito as nothing more than a concession to the far right. Repeat that loudly and often. Keep hammering away on the fact the far right controls the GOP.

Everything Bush does from here forward should be labeled as either a. a concession to the far right or b. a distraction from his political implosion. Every thing he says should fall into one of those two categories. Dems should be thinking about how best to set-up the midterms, instead of fighting a battle they can't win - which is exactly what Rove, et al. are trying to bait them into doing.

Posted by: mike | Nov 1, 2005 3:00:26 PM

I can't figure out what would be the best Democratic strategy, though I'm viscerally inclined to favor Operation Samson--bringing down the walls of the Senate, and let the world be damned. Of course, it would be nice if we could be open-minded and objective, but with the Republicans strongly committed and decidedly UN-objective, that would be silly--not to mention wimpy.

Posted by: Ralph | Nov 1, 2005 3:28:20 PM

well, it's simple, really: make the case repeatedly that the guy is a right-wing extremist, via ads and talking-head shows. then vote against him. then filibuster.

very few people believe that strip searching 10-year-old girls without a warrant, and discrimination in employment based on race or disability is or should be constitutional. so if we can make the case that alito is for those things (and he is, or was not so long ago), and then stop him from getting on the court, we win.

this nomination battle is really an ideological battle: are we going to have a conservative theocracy, or a liberal democracy? if we don't think we can win that fight, then what are we doing here?

Posted by: shai | Nov 1, 2005 4:48:19 PM

I'm disappointed that the conversation on the left isn't "Will this guy make a good justice?" but rather "How do we make this guy look bad?" No wonder people start tuning out politics.

It's only been a day, and the noise from the right is "Is he really one of us?" while the left is saying "How do we bury him?" Geez, how about figuring out if the man is qualified to sit on the highest court in the land?

Posted by: JTHC | Nov 1, 2005 5:09:41 PM

As I state at my weblog today, I do not think "Scalito" is an anti-Italian insult. I do, however, believe it is juvenile, insulting and unhelpful. See finito con "scalito".

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