At a forum hosted by the Harvard ACS, Cass Sunstein, Charles Fried and Tom Goldstein discussed Alito. Fried and Goldstein seem to be fairly positive on Alito’s record (not surprising, since Fried was Alito’s boss for a year and a half).
Sunstein, however, said:
“I want to be for Alito and I hoped to be for him. And I am not yet against him but with regret and some suffering I am very nervous.” Sunstein continued by laying out the criteria that is fueling his nervousness. He explained that it is well established that the Senate can reject a nominee if their views of jurisprudence are unacceptable. The “unfortunate” Miers nomination, according to Sunstein, “established that being ideologically extreme or inappropriate is something that is legitimately considered as part of the appointment process.” Sunstein argued that idea that ideology does not matter is “preposterous.” The question is, Sunstein posited, “what is the reasonable range” for a nominee’s ideology.
He argued that the President’s choice deserves a degree of respect, and that a vote against a nominee ought to be grounded not in the way a nominee would vote on one issue, but if the nominee’s views are so extreme, ill-reasoned, ideological or unreasonable in principle as to be unacceptable, a vote against is necessary.
Sunstein suggested that unlike Roberts, whom Sunstein argues appears to be a Burkian conservative, Alito appears to be a “movement conservative,” “for whom the Constitution of the United States looks uneasily like the right wing views of the Republican party.” Sunstein arrived at this view by conducting a review of all of Alito’s dissenting opinions, which Sunstein argued is the best measure of what a judge will be like on the Supreme Court, since majority opinions tend to be fore-ordained or close to fore-ordained, by circuit court or Supreme Court precedent.
His dissents are “more than competent” and well written. “He does not posture or speak ambiguously like Scalia or Thomas.”
The problems arise in the voting pattern:
which he called “alarming.” Sunstein found that Alito, “in an overwhelming percentage of cases, is dissenting from the right and rejecting opinions written by Republican nominees. Time and again he is dissenting from the right and very rarely from the left.” … “There are simply no cases in which Alito’s understanding of the law departs significantly or dramatically from his political convictions.” Sunstein’s problem is that Alito does not “surprise him.” He explained that from time to time various conservative judges and justices, like Scalia, Ludwig, Posner, and Wilkinson, will surprise you with opinions that are not aligned with their political convictions, but that is not the case with Alito. According to Sunstein, Alito has “a [voting] pattern that does not look like anyone I have seen in the study. A pattern in which his political judgments and legal judgments are stunningly in alignment.”
He reserved judgment on endorsing the nomination, but expressed concern that Alito’s desire for ideological purity would prevent him from being a good justice.
Alito is not Satan, and he is not a fool. He clears whatever minimal qualifications one might look for, but I think we ought to look for more than mere adequacy in a Supreme Court justice. Alito lacks any reasonable measure of excellence one might apply.