There is scarcely any act respecting which the conscience of an average man is less sensitive...The qualifications which fit special individuals for special duties can only be recognized by those who know the individuals, or who make it their business to examine and judge of persons from what they have done, or from the evidence of those who are in a position to judge. (Mill on the nomination to employments, Considerations on Representative Government, Chapter V)
During the most recent Supreme Court confirmation hearings, many commentators suggested that over the last century these confirmations have increasingly become public and political events. In the twenty-four years since Supreme Court confirmation hearings were first televised, "interest groups" have taken a progressively greater role in the proceedings, as the concluding "witness" phase expanded. I argue that close analysis of the most recent hearings suggests that, at least in this go-round, partisan disagreement was overwhelmed by a deeper technocratic consensus oriented to professional (juridical) privacy.
On days four and five of the Samuel Alito confirmation hearings--January 12 and 13th, 2006--the Senate Judiciary Committee heard 30 outside witnesses, preceded by 3 members of the American Bar Association reporting on that body's review of the nominee. Of the 30 witnesses, 13 out of the 16 who spoke in support of the nomination were current or former friends, mentors, colleagues or clerks of Sam Alito. Their testimony was largely or entirely based on their intimacy with him as a person and as a judge; these witnesses were so close to the nominee that they couldn't help but call him "Sam." As Judge Maryann Barry said early in her testimony, "Now, I warn you, I may be a little free and call him Sam on occasion, because Judge Alito and I go back almost 30 years to 1977" (Day 4). All fourteen of the witnesses against the nomination, on the other hand, based their testimony entirely on reviews of Alito's writings and opinions, and had no personal relationship with him. Midway through day four, after Professor Goodwin Liu had presented the first forceful argument against Alito, Senator Coburn (R) alluded to this contrast:
You know, I live on Capitol Hill with two Democrats...(And) I get asked...How can you live with those two guys? And I say you don't know his heart. And it strikes me as I look at this panel, the three people who testified favorably for Judge Alito know him. And the three people who didn't testify, who testified somewhat negatively about Judge Alito don't know him. They've read some of his cases, not all of his cases...the people that have worked with him for over a decade, worked with him in a closed room. I believe they know his heart. And I believe anyone in this room you can take anything that we've written at some time or said at some time and you can make each of us look terrible. (Day 4 Panel 3 Questions; emphasis added)
With his reference to living with Democrats, Coburn seems to reveal the logic of the Republican use of black, female or liberal witnesses for Alito (of which more later). Coburn asks: if they like Alito, why should Professor Liu, the Democratic senators who picked him for the panel, or the liberal, black and female viewers/listeners/readers at home be troubled by mere writing? Coburn suggests: if you knew Alito's heart as your fellow liberals, women and minorities do, you might like living with him too. Professor Liu responds:
Well, Senator Coburn, I certainly can't dispute Judge Lewis' account or views on Judge Alito. I understood the previous panel to be testifying to the integrity and intellectual honesty of the nominee, none of which I dispute...My only viewpoint, I guess, that I'm offering is not really a viewpoint at all. What I'm trying to simply urge is that some attention be paid to his record and that the record speaks for itself. (Day 4 Panel 3 Questions)
Coburn argues that the intimate knowledge of Alito's liberal colleagues conflicts with Liu's statements on Alito's record, and suggests that Liu's presentation of the record is untrustworthy ("You can take anything we've written...and you can make each of us look terrible"). Liu argues that the two forms of evidence are unrelated and can't possibly be measured against each other, and moreover that he is not presenting the record at all: the record is objective, demanding only a willing ear to hear what it is saying.
It might seem that we have here a familiar partisan tussle over forms of evidence: Republicans deploying conservative Christian discourses of "heart" against the inscription-based secular positivism of Democrats; red and blue pitting subjective viewpoint against objective record, truth against facts. However, there is something more complicated going on. The use of private knowledge against public evidence is not just a religious conservative tactic.
The ABA review panel which preceded the "partisan" witnesses, and which was repeatedly represented as non-political and was not selected, as the witnesses were, by either party, also privileged the personal understanding of colleagues over the evidence of a judge's record which it represented as confusing and potentially misleading. As the lead witness on the ABA panel, chairman of the ABA Standing Committee on the Federal Judiciary Stephen Tober stated that the panel conducted interviews with "over 300 individuals...over 130 of whom were federal judges" and read "350 of his published opinions, scores of his unpublished opinions, and other materials" (Day 4 Panel 1 Questions). But while the colleagues "almost uniformly" described him as fair, the written materials were "inconclusive": "a couple" of reading groups found evidence of bias, "a significant number" of reading groups did not. When asked by Senator Leahy to comment on the Knight-Ridder review of 311 rulings which charges Alito with preferring the state to individuals and the strong to the weak, Tober countered that "over 300 people we spoke with who know this person as a judge, as an individual, are convinced that he has an open mind; that he does not bring any bias to this decision-making" (Day 4 Panel 1 Questions).
The ABA panel agreed with Coburn rather than Liu, and used many of the same arguments, but without the evangelical overtones. Both suggested that written records are untrustworthy, and can be directly countered by testimonies of judicial intimacy. Numbers are significant in this form of argument, but only as indicators of quantity. Tober, like Senator Coburn, disdained statistics: faced with a lack of unanimity in the record, he turned to the personal recommendations of other judges. He did not even mention the various methods of selecting significant cases for analysis offered by the legal scholars in later panels.
Tober's double classification of Alito "as a judge, as an individual" is significant. Senator Coburn's talk of knowing "heart" might suggest knowledge of Alito the man. But as the witness phase went on it became clear that the judges, lawyers and legal clerks were not witnessing a person, but a "judge," as demonstrated by the testimony of the demographically or politically "surprising" witnesses for Alito mentioned above-the witnesses repeatedly marked as black, female, and/or card-carrying ACLU members. These witnesses were careful to distinguish between "personal" knowledge of Alito the person, which they lacked (that Alito may or may not have conservative political opinions, they wouldn't know) and "personal" knowledge of Alito the judge, which they possessed (Judge Alito is fair, cautious, careful, impartial, humble, etc). Mr. Jack White, a former clerk, said the following:
What I found most intriguing, and particularly exceptional about Judge Alito's judicial decision-making process, was the conspicuous absence of personal predilections...Indeed, after a year of working closely with the judge on cases concerning a wide variety of legal issues, I left New Jersey without knowing Judge Alito's personal beliefs on any of them. Now, the reason I didn't know his personal beliefs on all of these issues was that the jurist's ideology was never an issue in a case that Judge Alito heard. Indeed, it's never an issue in any case. (Day 5 Panel 3)
White represents Alito as a man conspicuously lacking in opinions, even as he says that personal beliefs are "never at issue in any case." His claim not to "know" Alito's opinions is slightly disingenuous, since his testimony (repeatedly marked as that of a black man by references to the NAACP and self-attributions) and the story he related of Alito's generosity to his "two African-American parents," were both clearly intended to clear Alito of the charge of racism (just as the two female clerks, Pringle and Demleitner, stood as living evidence against charges of misogyny). The same identity-evidence was offered by ABA representative Tucker in response to a question about Alito's membership in the racist organization Concerned Alumni of Princeton (CAP). No one denied that he had been a CAP member, but Tucker claimed that women and minorities who worked with Alito "were shocked when they heard that that was listed on his application. And they said, "That is not the Sam Alito we know." " (Day 4 Panel 1 Questions).
All the character witnesses focused on judicial process rather than product, claiming that Alito's fair process qualifies him for the Supreme Court, and discredited any review of his decisions. These witnesses described their evidence for his impartiality rather than presenting it for analysis. They did not offer proof for their statements about Alito's judicial process by quoting from memoranda or relating a positive description of his process to a codified standard. Instead, they offered lists of their own alma maters and professional accomplishments to validate their authority as members of the judicial elite, and then descriptions of the depth of their relationships with Alito. This form of "evidence" is doubly private. It is not just personal knowledge, it is a kind of personal knowledge specific to judicial relationships and the particular roles of the participants in court, and these relationships were repeatedly described as being beyond the grasp or understanding of people who do not work in the courts.
My views and those of my colleagues on the court were sought by the American Bar Association because we have a unique perspective on Judge Alito, a perspective that no one else has. Anyone can read and interpret his opinions. But we know Judge Alito from almost daily contact over a period of years. We have sat together in the same conference room. We have discussed the cases. We have decided them. And we have exchanged legal memoranda. (Judge Scirica, Day 4 Panel 2, emphasis added)
Since [1990], we have sat on over 1,000 cases together. And I have therefore come to know him well as a judge and as a human being. Many do not fully understand the intensity of the intellectual and personal relationship among appellate judges... I think that the public does not understand what happens when you become a judge. When you take that judicial oath, you become a different person. (Judge Becker, Day 4 Panel 2)
This "different person" is the Alito offered to the Senate, the court and the American people. The only legitimate form of evidence of the virtue of a Supreme Court nominee, these witnesses said, is entirely unavailable to the public. Neither Alito's personal beliefs (as suggested by his work as a lawyer in the Reagan administration, or his membership in CAP) or any bias that might appear in a statistical analysis of his decisions could be relevant, so long as his decision-making appeared fair to those who work with him.
The only witness against Alito who tried to get personal, Kate Michelman, offered an entirely different-and essentially public-model of "personal" testimony. Michelman, former head of NARAL, used her time (extended to ten minutes to balance the extra time taken by judges on the first panel) to tell the story of her abortion in 1969: of being abandoned by her husband, left pregnant with three children, forced to explain herself to a review board, and finally to get her husband's permission. In telling this story Michelman represented herself as a subject of bad laws that Alito might be expected to reinstate, and invited the audience (both the Senate and the audience following the hearings through television, radio or internet) to imagine themselves as subjects of these laws, to remember their own unfortunate pregnancies. The pro-Alito witnesses, on the other hand, represented themselves as law-makers, and informed the audience of their opinion as such; their testimony was personal only insofar as it was professional.
This form of technocracy is not just about an opposition between educated experts and the uneducated public, but about a distinction between the judiciary and academia. All of the eleven "personal" witnesses were practicing judges or clerks, and all five of the remaining witnesses in support of the nomination were lawyers (no colleagues from his time in government were asked to testify). Most of the dissenting witnesses, on the other hand, were professors of law or lawyers working in large advocacy groups. The professors of law cited cases and legal history; the judges and lawyers talked about walks in the park, humility, honesty. Throughout the witness phase, opponents of the nomination continued to claim that there was no argument going on, that the two forms of evidence were incomparable. In the question period after the very last panel, a mix of former clerks, legal scholars and Congressional representatives, the liberal lawyer Shaw made the following argument:
...there's nothing remarkable about colleagues on the federal bench and former law clerks taking positions in support of this nominee. Collegiality is a very, very important commodity on the bench. And...they know him personally. But this is not about personality, and it is not personal. We are compelled to testify in opposition to the nomination of Judge Alito to the United States Supreme Court based on a standard that the judge himself articulated. I think it's a correct standard. He said if you want to know what kind of justice I would be on the Supreme Court, look at my record on the court of appeals. That is exactly what we have done. And it is only on that basis that we have arrived at the position that we have taken. (Day 5 Panel 3 Questions)
But Alito's standard had apparently already lost. The record was not the primary source of evidence cited by Arlen Specter when, at the end of the hearing, he announced his vote. Rather, Specter justified his decision to support Alito by explaining his own "personal" connections to the various judges from the first panel-the most senior, most authoritative witnesses of the entire proceedings:
I think the judicial panel was very instructive and there had been some precedence for it in the past, although this broke new ground in having as many testify as they did. And the practice after judges hear arguments to go into conference and discuss it is one which is not widely understood by people. And Judge Alito went into conferences. He and Judge Becker had sat on more than 1,000 cases. I believe Judge Becker testified they disagreed only 15 times. Judge Becker received a Devitt Award as one of the -- as the outstanding federal jurist a couple of years ago.
Of course, I know Judge Becker very well because we went to college and law school together and he's been a close friend. But he didn't exert any undue influence on me. But he testified that Judge Alito had no agenda and was not an ideologue, and so did the chief Judge Scirica. And, of course, I know the 3rd Circuit because it's my circuit. I've argued a lot of cases in the 3rd Circuit. And I had a hand in the appointment of Judge Scirica to both the district court and the court of appeals and Judge Barry. And then I thought the testimony of Judge Timothy Lewis was very influential. And just a word about Judge Lewis. I first heard about him at about 1990 when he was an assistant U.S. attorney in Pittsburgh, an African-American. And Senator Heinz and I were very interested in diversifying the court. Having an African-American -- hard to find a Republican African- American, still is pretty hard to find. And when we found one, I wanted him on the district court bench. And I heard about him one morning in Pittsburgh, saw him that afternoon in a hotel lobby and talked to Senator Heinz about him the next day. And he was put on the district court in very fast time, and been on the court of appeals since 1992. And I've known him for more than 15 years. When he says after knowing Judge Alito as he did, sitting with him, and Judge Lewis being dedicated to pro-choice and to civil rights, being active on the ACLU and pro-choice, that he wouldn't testify for him if there was a doubt in his mind -- I thought that was significant. (Day 5 Panel 3 Questions)
Ultimately, Specter, the most powerful member of the judiciary committee not only because he is chair but because of his position as a relatively moderate Republican, offered his professional intimacy with the witnesses as a legitimating ground for his trust in their description of their relationships with Alito. Senators who are not professionally related to any 3rd Circuit Judges are presumably supposed to consider their own professional intimacy with Specter and judge his recommendation of the witnesses accordingly.
These hearings displayed a pernicious form of technocracy inimical to democracy: technocracy that is openly secretive, refusing to legitimate itself through any means available to the "outsiders" in academia, let alone the American public. If Alito's confirmation hearing broke new ground in the use of judicial witnesses, as some commentators claimed after the hearings, we can only expect more "personal" evidence, and more "judge's judges."