**LETTER INCLUDED**
FOR IMMEDIATE RELEASE
CONTACT: Laura Capps/Melissa Wagoner
January 9, 2005
(202) 224-2633

KENNEDY: COMMITMENT TO EQUAL JUSTICE UNDER THE LAW VITAL

KENNEDY DELIVERS OPENING STATEMENT IN NOMINATION OF JUDGE SAMUEL ALITO TO SUPREME COURT AND RELEASES NEW ANALYSIS DEMONSTRATING ALITO RARELY RULES AGAINST GOVERNMENT

Washington, DC - Today, Senator Edward M. Kennedy delivered his opening statement in the nomination of Judge Samuel Alito to the Supreme Court. Senator Kennedy stressed the value of a demonstrated commitment to "equal justice under the law" in our next Supreme Court justice and noted troubling aspects of Judge Alito's record. Kennedy also released a new study by University of Chicago Law School Professor Cass Sunstein concluding, "When there is a conflict between institutions and individual rights, Judge Alito's dissenting opinions argue against individual rights 84% of the time."

"In an era when the White House is abusing power, is excusing and authorizing torture, and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling," Kennedy said, "Ultimately, the courts will make the final judgment whether the White House has gone too far. Independent and impartial judges must assess the proper balance between protecting our liberties and protecting our national security."

Alito's views of vast presidential authority and consistent rulings against individual citizens when up against the government, corporations, or other powerful interests raise questions of Alitos impartiality and commitment to equal justice. In Alito's 15-years on the bench, Judge Alito has not written one single opinion on the merits in favor of a person of color who alleged race discrimination in the workplace.

The attached analysis conducted at Senator Kennedy's request by Professor Sunstein concludes that average Americans have had difficulty getting a fair shake. Other studies have resulted in similar findings, including studies conducted by Yale Law School and Knight Ridder.

Other troubling aspects of Alito's record include his involvement in the Concerned Alumni of Princeton (CAP)-a group opposed to Princeton's decision to admit women and minorities and openly hostile to gay and disabled individuals. Despite plugging his CAP membership in 1985 while trying to obtain a job in the Regan Administration, Alito decided not to mention his involvement to the Senate Judiciary Committee when nominated to the US Court of Appeals in 1990. Additionally, Alito's broken promise to the Judiciary Committee to recuse himself in a cases involving Vanguard-a mutual fund in which he had most of his investments-raises further questions of Alito's credibility.

Attached is Senator Kennedy's opening statement and analysis of Alito's dissents:

STATEMENT OF SENATOR EDWARD M. KENNEDY
AT THE NOMINATION HEARING OF SAMUEL ALITO TO SERVE ON THE SUPREME COURT
(AS PREPARED FOR DELIVERY)
January 9, 2006

Judge Alito, I join in welcoming you and your family to this committee.

I appreciated the opportunity to visit with you in my office a few weeks ago. I was particularly impressed by your personal family story of how you were encouraged to do well and contribute to the community. I also applaud your dedication to public service throughout your lifetime.

Supreme Court nominations are an occasion to pause and reflect on the values that make our nation strong and just and fair. And we must determine whether a nominee has a demonstrated commitment to those basic values.

Will a nominee embrace and uphold the essential meaning of the four words inscribed above the entrance of the Supreme Court building - "equal justice under law".

Justice Lewis Powell spoke for all of us when he said, "Equal justice under law is perhaps the most inspiring idea of our society. It is one of the ends for which our entire legal system exists."

As we have seen from Justice O'Connor's example, even one justice can profoundly alter the meaning of those words for our citizens. Even one justice can deeply affect the rights and liberties of the American people. Even one justice can advance or reverse the progress of our journey.

So the question before us in these hearings is this: Does Judge Alito's record hold true to the letter and spirit of equal justice? Is he committed to the core values of our Constitution that are at the heart of our nation's progress? Can he truly be evenhanded and fair in his decisions?

In a way, Judge Alito has faced this issue before as a nominee to the Court of Appeals. I had the privilege of chairing his confirmation hearing in 1990. At that time, he had practiced law for fourteen years, but only represented one client - the United States government. And I asked whether he believed he could be impartial in deciding cases involving the government.

In that hearing, Judge Alito said on the record that the most important quality for a judge is "open-mindedness to the arguments."

He promised the Committee that he would make "a very conscious effort to be absolutely impartial."

We took him at his word, and overwhelmingly confirmed him to the Third Circuit Court of Appeals.

We now have the record of Judge Alito's fifteen years on the bench, and the benefit of some of his earlier writings that were not available fifteen years ago. I regret to say that the record troubles me deeply.

In an era when the White House is abusing power, is excusing and authorizing torture, and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling. Under the President's spying program, there are no checks and no balances. There is no outside review of the legality of this brazen infringement on the civil rights and liberties of the American people. Undeterred by the public outcry, the President vows to continue spying on American citizens.

Ultimately, the courts will make the final judgment whether the White House has gone too far. Independent and impartial judges must assess the proper balance between protecting our liberties and protecting our national security.

I am gravely concerned by Judge Alito's clear record of support for vast presidential authority, unchecked by the other two branches of government. In decision after decision on the bench, he has excused abusive actions by the authorities that intrude on the personal privacy and freedoms of average Americans. And in his writings and speeches, he has supported a level of overreaching presidential power that frankly most Americans find disturbing and even frightening.

In fact, it is extraordinary that each of the three individuals this President has nominated for the Supreme Court - Chief Justice Roberts, Harriet Miers, and now Judge Alito - has served not only as a lawyer for the Executive Branch, but has defended the most expansive views of presidential authority. Perhaps that is why this President nominated them.

But as Justice O'Connor stated, even a state of war is not a "blank check" for a President to do whatever he wants. The Supreme Court must serve as an independent check on abuses by the executive branch, and a protector of our liberties, not as a cheerleader for an imperial presidency.

There are other areas of concern. In an era when too many Americans are losing their jobs, or working for less and trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of individual citizens. He has acted instead in favor of the government, large corporations, and other powerful interests. In a study by a well-respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84 percent of his dissents. To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.

In an era when America is still too often divided by race and by riches, Judge Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job. In fifteen years on the bench, not one.

And when I look at that record in light of his 1985 job application to the Reagan Justice Department, it is even more troubling. That document lays out an ideological agenda that highlights his pride in belonging to an alumni group at Princeton that opposed the admission of women and proposed to curb the admission of racial minorities. It proclaims his legal opinion that the Constitution does not protect the right of women to make their own reproductive decisions. It expresses outright hostility to the basic principle of one person, one vote, affirmed by the Supreme Court as essential to ensuring that all Americans have a voice in their government.

This application was not a youthful indiscretion. It was a document prepared by a mature, 35-year-old professional.

Finally, many of us are concerned about conflicting statements that Judge Alito has made in response to questions from this Committee and others. As Chairman Specter has stated, this confirmation largely depends on the credibility of Judge Alito's statements to us. And we have questions.

When asked about the ideological statements and specific legal opinions in his 1985 application, Judge Alito has dismissed those statements as "just applying for a job."

When he was before this committee in 1990, applying for a job to the circuit court, he promised under oath that he would recuse himself from cases involving Vanguard, the mutual fund company in which he had most of his investments. But as a judge, he participated in a Vanguard case anyway, and has offered many conflicting reasons to explain why he broke his word.

We need to get to the bottom of this matter to assure ourselves that what Judge Alito says in these hearings will not be just words, but pledges that guide him in the future, if he is confirmed.

Judges are appointed "by and with the advice and consent of the Senate," and it is our duty to ask questions on great issues that matter to the American people, and to speak for them.

Many Republican Senators certainly demanded answers from Harriet Miers. We should expect no less from Judge Alito. This is no time for a double standard.

If confirmed, Judge Alito could serve on the Court for a generation or more, and the decisions he will make as a Justice will have a direct impact on the lives and liberties of our children, our grandchildren and even our great grandchildren. We have only one chance to get it right and a solemn obligation to do so.

So Judge Alito, I have serious questions to ask you. I do congratulate you on your nomination. And I look forward to your answers in these hearings.
University of Chicago Law School
1111 E. 60th Street
Chicago, Illinois 60637

Cass R. Sunstein
Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science
Telephone 773-702-9498
FAX 773-702-0730
e-mail: csunstei@uchicago.edu

December 29, 2005

The Honorable Edward M. Kennedy
United States Senate
Washington, DC

Dear Senator Kennedy:

This will respond for your request for an analysis of the dissenting opinions of Justice Samuel Alito, and in particular of the percentage of Judge Alito's dissenting opinions that rule in favor of individual rights. This is a long and quite complex story, and I shall be offering many disclaimers. But to make that story short and simple: When there is a conflict between institutions and individual rights, Judge Alito's dissenting opinions argue against individual rights 84% of the time. In almost all of the cases in which Judge Alito dissented in order to reject individual rights claim, he was sitting on a court with a majority of Republican appointees. A summary statistic of this kind must be taken with many grains of salt and with appropriate qualifications; let me now add a sense of context and a few complexities.

If the goal is to obtain an understanding of what kind of Supreme Court justice a presidential nominee would be, dissenting opinions are a legitimate and important subject of inquiry. When a judge joins a majority, it may be because the case is exceedingly easy under established law, or because the judge is willing to concur in the view expressed by his colleagues. (Judge Robert Bork, for example, was in agreement on the D.C. Circuit with then-Judge Ruth Bader Ginsburg about 91% of the time - which did not suggest that they would vote in the same way on the Supreme Court! An important question for inquiry would have been the other 9%.) Hence there is a limit to how much one can learn from majority opinions. Dissenting opinions, by contrast, are relatively rare, and if the sample of such opinions is large enough, one can learn a great deal about a judge's inclinations. In some ways, dissenting opinions are the simplest and surest guide to those inclinations.

By my count, Judge Alito has written 66 dissenting opinions, and I restrict the analysis to those opinions. Some of them cannot reasonably be "coded" in terms that ask for Judge Alito's position on rights; such cases involve technical or other issues that cannot be easily analyzed in those terms. Other cases defy "coding" because rights claims are on both sides - as, for example, when a labor union seeks the home addresses of its members (the right to union representation is colliding with the right to individual privacy). Still other cases require the exercise of discretion. For example, I have coded two of Judge Alito's votes as "for individual rights" in cases in which he argued in favor of patients complaining of medical malpractice. In some of these cases, reasonable people can certainly differ about appropriate coding.

With that qualification: Of the 66 dissenting opinions, 45 seem to be plausibly coded in the terms you suggest. Of those 45, 38 vote against individual rights, and seven is favor, for the overall percentage of 84% against. What is worth underlining is that these are cases in which a majority of Judge Alito's court has ruled in favor of such rights. If the 84% figure matters, of course, it is largely because of the overall pattern it establishes, not because of any particular vote. Indeed, it is entirely possible to express concern with that overall pattern without believing that any individual vote is unreasonable.

A natural question is whether Judge Alito is dissenting from majority opinions that distort the law. Perhaps he is rejecting decisions ruling in favor of individual rights when such a ruling is unwarranted under existing law. One way to test that question, admittedly imperfect, is to see whether he has dissented mostly from opinions by two Democratic appointees. (It is not terribly likely that Republican appointees will regularly distort the law in a way that favors individual rights.) If we use this test, we will see that of Judge Alito's 38 votes against individual rights, only two involve a majority of Democratic appointees. In fact 16 of those votes involve all-Republican panels! In a number of cases, prominent Republican appointees (including, for example, Secretary of Homeland Security Michael Chertoff) have voted in favor of individual rights, and Judge Alito has dissented.

An additional way of evaluating these dissenting opinions is less statistical; it involves an assessment of their merits and their relationship to preexisting law. Any such assessment will, of course, involve a high degree of discretion. But a preliminary analysis suggests two points. First, Judge Alito's opinions are carefully reasoned, well-done, attentive to law, lawyerly, and unfailingly respectful to his colleagues. Second, it is fair to say that he has often dissented, in a way that rejects individual rights claims, even though the law, fairly interpreted, could well be taken to support those claims. Hence he has exercised his own discretion, not lawlessly but in a way that helps to illuminate his general approach to the law.

There is a final question: Is the 84% high, comparatively speaking? I have not been able to do a comparative analysis, but I have also attempted to "code" the dissenting opinions of a number of prominent judges, including Judge Alito, in crudely political terms, as "conservative" or "liberal." With many apologies for the crudeness of this method of coding, I can report that many prominent Republican appointees tend to show a complex pattern of dissenting opinions, dissenting "from the left," as they understand the law, as well as "from the right." Many Republican appointees, including many mentioned as possible Supreme Court nominees, dissent "from the right" somewhere between 65% and 75% of the time - showing that in a significant percentage of cases, they read the law in a way that does not fit with conventional political ideology.

A complex pattern of dissenting opinions, or a percentage in that general range, seems to fit (for example) the judicial record of Judge Edward Becker on the Third Circuit; Judges Richard Posner and Frank Easterbrook on the Seventh Circuit; Judges Stephen Williams and Douglas Ginsburg on the D.C. Circuit; Judge Alex Kozinski on the Ninth Circuit; and Judges J. Michael Luttig and J. Harvie Wilkinson on the Fourth Circuit. By contrast, the corresponding figure for Judge Alito is in the range of 90%. Here too the particular figure must be taken with many grains of salt, in part because of the coding problem, but I believe that a neutral inspection of his dissenting opinions will reveal the basic pattern I am describing.

What is most noteworthy, perhaps, is that these dissenting opinions are perhaps not appropriately characterized as "conservative." Instead, they show a general pattern, to be sure not unbroken, of resolving difficult cases in favor of established institutions.

I should add that considerable attention has been given to an exceedingly valuable study, conducted by Stephen Choi and G. Mitu Gulati, that purports to find that Judge Alito is one of the more "neutral" judges in the United States. Choi and Gulati use a different data set and a different methodology from mine. I am not certain, but I believe that with respect to Judge Alito, a generally sensible component of their methodology has led them to a quite misleading conclusion. In brief, they ask whether a Republican appointee is as likely to disagree with Democratic appointees as with Republican appointees, and whether a Democratic appointee is as likely to disagree with Republican appointees as Democratic appointees. If a Republican appointee disagrees with Republican appointees as much as with Democratic appointees, there is some reason to believe that he is independent. And with this measure, they find that Judge Alito is quite neutral, or independent, because he frequently disagrees with Republican appointees.

But there is an obvious problem with this mode of analysis. Applying their method to my data set, the same conclusion would be reached - but only because Judge Alito rejects individual rights claims so much more often than fellow Republican appointees! In short, the Choi/Gulati methodology, applied to Judge Alito's dissenting opinions, would give him high marks for independence and neutrality, but only because those opinions so frequently argue that fellow Republican appointees have wrongly ruled in favor of individual rights. In this particular context, a good methodology appears to misfire.

I have offered a number of disclaimers already, but let me close with two more. First, I do not mean to reach any kind of conclusion about whether Judge Alito should be confirmed -- a question that obviously turns on far more than an analysis of his dissenting opinions can show. Second, the analysis here has been conducted under considerable time pressure, and it must be regarded as tentative and preliminary.

With all best wishes.

Sincerely,
Cass R. Sunstein
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