December 10, 2005

A Liberal Alito Clerk Speaks

Jeffrey Wasserstein has this op-ed defending Judge Alito:
As a former clerk for Judge Samuel Alito, I can tell you he is not the conservative ideologue portrayed in a recent article by Knight Ridder reporters Stephen Henderson and Howard Mintz.

I am a registered Democrat who supports progressive causes. (To my wife's consternation, I still can't bring myself to take my "Kerry for President" bumper sticker off of my car.) I clerked for Alito from 1997 to 1998. Notwithstanding my close work with Alito, until I read his 1985 Reagan job application statement, I could not tell you what his politics were.
* * *

One example that I witnessed of Alito's ability to approach cases with an open mind occurred in the area of criminal law, an area in which Alito -- a former federal prosecutor -- had particular expertise. One time, I was looking at a set of legal briefs in a criminal appeal. The attorney for the criminal defendant had submitted a sloppy brief, a very slipshod affair. The prosecuting attorney had submitted a neat, presentable brief. I suggested (in my youth and naivete) that this would be an easy case to decide for the government.

Alito stopped me cold by saying that that was an unfair attitude to have before I had even read the briefs carefully and conducted the necessary additional research needed to ensure that the defendant received a fair hearing before the court.

Perhaps that's not what one would expect from a conservative ideologue (and former federal prosecutor), but it is indicative of the way that Alito approaches each case with an open mind, and it is a lesson I've never forgotten.

Another example, which reached a result that would seem contrary to a conservative ideologue, was a case I worked on with Alito (U.S. vs. Kithcart) in which he reversed the conviction of a black male, holding that an all-points-bulletin for "two black men in a black sports car" was insufficient probable cause to arrest the driver of the car. Notwithstanding the driver's guilty plea, Alito reversed, finding that the initial arrest lacked probable cause, stating: "The mere fact that Kithcart is black and the perpetrators had been described as two black males is plainly insufficient."

This is hardly the work of a conservative ideologue.

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