He always grasped the point–whatever it was–with
intimidating speed. Sam made me wonder whether I had chosen the
right career. But equally striking was the gentleness with which
he spoke. Sam might be persuaded he was right but always
expressed his views with a modesty that made it clear he knew he
might be wrong, and that someone else would show him why. He
always listened to what others said–not in the superficial sense
of merely waiting for them to finish, but in the deeper and more
consequential sense of considering their arguments with
generosity and a willingness to modify or abandon his own
position–which he often did–if the balance of reason weighed on
the other side. Learned Hand once described the spirit of
liberty as the spirit “that is not too sure of itself.” That is
an essential virtue both in the law and in the human beings who
administer it. It is a quality I saw in Sam from the start.
I saw something else as well. I saw that Sam
had faith in the law, that he trusted the fairness of its
processes and believed that even the hardest cases can be
settled on its terms. Anyone who has studied the law knows that
it is not a mechanical system. Questions of law often implicate
moral and political judgments. But there is all the difference
in the world between those who view the law as an instrument for
the advancement of a political program and those whose primary
allegiance is to the law–who take their bearings from the law
and its requirements and values. Sam belongs to the latter
group. When we graduated from law school thirty years ago last
spring, I would have said that Sam was one of the best lawyers
in our class. I would have described him as a lawyer’s lawyer. I
knew Sam well but could not have told you whether he was a
Democrat (as I was then and am today) or a Republican. What I
did know and admired was his faith in the law, the modesty with
which he defended his opinions, and the generosity with which he
considered those of others.
In the years since, I have seen Sam often and
followed his career with admiration. My respect for him as a
person has remained unchanged. In the weeks since his
nomination, I have made an effort, as have many others, to
acquaint myself with his work as a judge and to discover, as
best I could, the mind and temperament that lies behind it. I
have not read all of Sam’s opinions, nor am I an expert in all
the areas in which he has written. Indeed, I could claim an
expertise in only one or two, and those far removed from the
areas of greatest controversy. But I have read enough to have a
sense of Sam the judge and it fits my sense of Sam the human
being.
The judicial temperament I discern is one
marked by cautiousness and deference; by an inclination to stay
as close to settled law as possible; to decline invitations to
speak broadly when a narrow decision will do; to move in small
steps rather than bold ones; to be mindful of the limits on
one’s office and its powers; to give weight to the considered
judgments of others, in different roles with different duties;
to be respectful of the past–that all-affecting attitude we
sometimes describe, too narrowly I think, as the rule of stare
decisis. These are general qualities that run through the
opinions of Judge Alito that I have read, even those with which
I disagree. Even where I would have decided the case
differently, I have been impressed by the rigor and
responsibility of his argument and in no case would I say that
his position falls outside the range of fair disagreement or is
driven by ideology, or indeed by anything but a discipline born
of a deeply felt commitment to the morality of judging.
Let me elaborate on this last point. Judge
Alito is a judge’s judge. He knows that a judge must pay
attention to facts and, so far as is humanly possible,
distinguish his personal beliefs from the requirements of law,
recognizing that this distinction cannot always be maintained
but vigilant against its promiscuous relaxation. He holds no
view, so far as I can tell, that is impervious to facts. He sees
the law from the inside, as one devoted to its principles and
procedures, not from the outside, as activists of all stripes
do. There is a name for this attitude. We call it judiciousness,
and in calling it that we recognize that it is the attitude
appropriate to the special role that judges play and to the
immense powers they wield. My confidence that Sam Alito, should
he be confirmed, will continue to be as judicious a Justice as
he has been a judge is strengthened by my personal knowledge of
the man and by my belief that his judicial qualities are rooted
in his human ones, the most secure foundation they could have. A
Justice of the Supreme Court is at once freer and more
constrained than a Court of Appeals judge–freer because he or
she has no superior whose judgments must be obeyed, more
constrained because the full weight of our constitutional system
falls on his or her shoulders. The responsibility that Sam has
shown as a judge and the modesty he has shown as a person give
me confidence that he will feel and bear this greater weight
with a judiciousness appropriate to his new office.
To what jurisprudential tradition does Judge
Alito belong? He has often been described as a conservative and
that is not inaccurate so long as we understand what kind of
conservative he is. In my view, the tradition of conservatism to
which Judge Alito belongs is the tradition championed by my
constitutional law professor at Yale, Alexander Bickel. Bickel
made prudence the judge’s central virtue, and spoke of the
importance of deference in deciding cases, of what he called the
“passive virtues,” especially in the work of the Supreme Court.
Bickel himself claimed descent from Edmund Burke, the great
eighteenth century writer and statesman who warned against the
dangers of abstraction and the loss of a sense of responsible
connection to the past. Sam Alito came to the Yale Law School
because he admired Bickel’s writings. Recently, he has named
John Harlan as one of his four Supreme Court heroes. Justice
Harlan was a practitioner of the passive virtues that Bickel
admired. He embodied the conservatism of caution, modesty and
deference that Bickel defended. My guess–my hope–is that Judge
Alito will be a Justice in the Bickel-Harlan line, a justice’s
justice, if I may be permitted to put it that way. It is a guess
based on half a lifetime of acquaintance.
