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Alito well-versed in First Amendment

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — Amid three days of refusing to state his views, it was a rare glimpse behind the facade: Supreme Court nominee Samuel Alito Jr. actually acknowledged that he had a point of view on a controversial issue.

Under questioning from Senate Judiciary Committee Chairman Arlen Specter, R-Pa., on Jan. 11, Alito revealed that within the private deliberations of his current court, the 3rd U.S. Circuit Court of Appeals, he had voted in favor of allowing cameras to broadcast the court's proceedings. “I argued that we should do it,” Alito said, noting that he was in the minority on the court; the 3rd Circuit did not join the 2nd and 9th circuits which by their own rules allow their arguments to be aired.

But as the exchange proceeded, Alito became just as elusive as he was on the First Amendment and most other matters. As his record as a 3rd Circuit judge foreshadowed, Alito during his confirmation hearing was comfortable with the current Supreme Court’s pro-First Amendment principles and precedents — but noncommittal about what he would do once becoming a justice who gets to make precedent, not just obey it.

On the issue of cameras in the court, Alito allowed that he thought it would be “useful,” though Specter cut off his answer. Alito then said jokingly that most of his colleagues on the 3rd Circuit were “fearful that our Nielsen numbers would be in the negative.”

But soon, Alito’s caution returned. “The issue is a little bit different on the Supreme Court,” he said. “And it would be presumptuous for me to talk about it right now, particularly since, I think, at least one of the justices has said that a television camera would make its way into the Supreme Court room over his dead body. So I wouldn’t want to comment on it.” He was referring to Justice David Souter.

With time running out for his round of questioning, Specter asked the nominee to keep an open mind, and Alito assented: “I will keep an open mind, despite the position I took on the 3rd Circuit.”

It was a tantalizing exchange that suggests that if Alito is confirmed, he will double the number of justices who favor cameras in the Supreme Court; John Paul Stevens, by some accounts, is the only other current justice who is an unqualified advocate of camera access. But whether the deferential Alito will press the point or advocate for cameras at all is far from clear.

And so it was on all the other First Amendment-related comments he made during three days of testimony. In sidestepping definitive statements of his views, Alito often offered summaries of the legal landscape on First Amendment issues that showed deep familiarity with the high court’s precedents. Those summaries mirrored the First Amendment rulings he wrote during his 15 years on the 3rd Circuit — many of them supportive of First Amendment claims, in line with positive Supreme Court precedents. But as with other issues, Alito stopped well short of stating whether those precedents would bind him once confirmed.

Sen. Richard Durbin, D-Ill., at one point tried to pin Alito down on his view of the establishment clause, and whether he favors the Court’s Lemon test, the coercion test and/or the endorsement test. “Where do you come down?” Durbin asked.

“I don’t think the Court has settled on any single theory that it applies in every case,” Alito answered, but Durbin persisted.

“Well, where are you?” Durbin said, “If the Court is divided, and it appears it is, where do you come down? Please tell me.”

Still, Alito declined, telling Durbin, “Well, I do not myself have a grand, unified theory of the establishment clause. As a lower court judge, of course, my job has been to apply those precedents. And this is an area in which I think the Court has been ... attempting to find the best way of expressing its view of what the establishment clause requires.”

It was the mind of an appeals court judge at work. Asked his view of an issue, he answered with what the Supreme Court’s view is, because by and large, appeals judges don’t view legal innovation or independent thinking as part of their job description. It will be a different ballgame if he joins the high court.

But at least Alito was at ease talking about the First Amendment — at one point contrasting it with the right to an abortion.

Sen. Charles Schumer, D-N.Y., in one of numerous attempts to draw out Alito on abortion, asked why, if he was willing to state that the Constitution protects free speech, the judge wouldn’t commit himself to saying whether the Constitution also protects an abortion right.

“Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can't be abridged,” Alito replied. “Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.”

At another point Alito said with pride, “If anybody reviews the opinions that I’ve written in the area of freedom of expression and other First Amendment [provisions] … they will see that I strongly support those rights.”

His seemingly instinctive embrace of First Amendment values had to be an encouraging sign for First Amendment advocates — even if, after the embrace, his outlook remained as difficult to predict as ever.


Alito on the First Amendment: excerpts from hearings

Partial transcript of proceedings in Samuel Alito's confirmation hearings before Senate Judiciary Committee. 01.12.06

Religion clauses protect nonbelief, Alito testifies
Graduation prayer, religious-school funding also raised before hearings end. 01.13.06

Judiciary Committee sends Alito nomination to full Senate
Panel votes along party lines, with all 10 Republicans endorsing 3rd Circuit judge for high court and all eight Democrats voting against him. 01.24.06

Online symposium: Samuel Alito & the First Amendment

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