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Friday, January 20, 2006 

Alito... Not That Conservative?

That's what Orin Kerr at Volokh thinks. Prof. Kerr thinks that Justice Alito will be somewhere between Justice Kennedy and Chief Justice Roberts on the left-right continuum. Kerr looks at two sources...
First, it was the impression I had of Alito when I was a Third Circuit law clerk. I clerked in 1997-98, and assisted on some panels in which Alito participated. Alito struck me as right-of-center, but very institutionalist. As Judge Garth (who ought to know) said in his Senate testimony, "Make no mistake, he is no revolutionary."

Second, I think the testimony of Alito's colleagues and former law clerks (of all ideological stripes) is particularly telling. If Alito were in fact a revolutionary, or had a big agenda, surely it would have come out at one point or another: It seems unlikely to me that an agenda-driven judge can keep that agenda secret from his colleagues and clerks for 15 years on the bench
Interesting points, but I have my doubts. I have my doubts because Alito did not become a federal judge until after the defeat of Robert Bork's nomination. Bork's defeat sent a message to judicial conservatives: if you want to make it to the Supreme Court, be careful about what you say.

There are a lot of legal positions that can be easily taken and accepted by the legal community that are horrible politically. Take Roe v Wade for example. Even some of the most politically liberal law professors and scholars will just rip apart the legal reasoning in Roe. The majority opinion is really just a mess. Discuss this in legal circles, and it's no big deal. Say this in public or write this in public (like in a judicial opinion on the appeals court), and it's going to be horrible. You'll have people like that blubbering mess Ted Kennedy attacking you relentlessly. I think that Alito, like many other conservatives in the legal world, has learned to watch what he says. I guess we'll have to wait and see who is right.

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