It's about time the U.S. Senate or the mainstream media vetted those publicly attacking Supreme Court nominee Samuel Alito as thoroughly as the Judge himself. After all, if the Senate Judiciary Committee or a gaggle of reporters parsed every word written and each comment uttered by the liberal opposition, the news would be a whole lot different.
Take University of Chicago law professor Cass Sunstein, for example. On the day of the nomination, Newsweek published an interview with Sunstein in which he asserted that Alito "is a very conservative judge." The professor went on to elaborate that, in 15 years on the U.S. Court of Appeals for the Third Circuit, Alito had authored "more than three dozen dissenting opinions and the overwhelming majority of them are more conservative than the court itself." And, to emphasize his point, Sunstein claimed "[t]his is particularly noteworthy because the court [Alito] is on is already very conservative."
Sounds believable, right? Well, yes, if only Sunstein had stuck to his story when he wrote for the Washington Post the very next day.
Instead, when Sunstein's op-ed column appeared the following morning, his assessment had changed dramatically. On the pages of the Post, the professor wrote that "Alito does not place political ideology in the forefront" and that "[n]one of [his] opinions is reckless or irresponsible or even especially far-reaching." And, discussing those same dissents, Sunstein now claimed they "are lawyerly rather than bombastic," and warned "not to misread" too much into them since Alito "sits on a relatively liberal court, and hence his dissents are sometimes from relatively liberal rulings."
So which is it, Professor Sunstein? Is Alito "very predictably conservative" judge, as you told Newsweek? Or is he a "modest" jurist who "does not place ideology in the forefront," as you wrote in the Post? For that matter, is the Third Circuit "very conservative," as you said in your Newsweek interview? Or is it "relatively liberal," as you claimed in your Post column?
As it turned out, those were only the most obvious problems with Sunstein's supposedly expert analysis of Alito's judicial inclinations. Inconsistencies in Sunstein's presentation of his "research" prompted legal blogger, fellow law professor and radio sparring partner Ann Althouse to ask Sunstein off-the-air for more details about his findings and conclusions. Specifically, Althouse wondered just how many Alito dissents Sunstein had categorized as "more conservative" than the decision reached by the other two judges on the panel.
This, after all, was the crucial question since Sunstein claimed "the overwhelming majority" of Alito's dissents were "more conservative than the court." What's more, Althouse already had her doubts, since Sunstein had referred twice to only "two dozen" conservative dissents during the radio program on which they had both been interviewed. Doing the math on her blog, Althouse commented: "There were 41 cases. ... 24 as compared to 17 is a 'remarkable pattern'? Fifty-eight percent of the time is 'almost uniformly'? I don't get it!"
It turns out, Althouse was absolutely right not to "get it" because the "overwhelming majority" of Alito conservative dissents claimed by Sunstein amounted to nothing more than his "best estimate" that just over half of Alito's dissents "are to the right" politically speaking.
As Sunstein explained in his e-mail reply: "In terms of counting: I looked over 41 dissents ... Some of them are easy to code in ideological terms; some of them aren't. Somewhere between 13 and 20 are best treated as 'neutral,' that is, no[t] ideological ... at all." What's more, Sunstein added that he wasn't even sure that all the remaining Alito dissents could be categorized as "conservative." Instead, it was simply his "best estimate" that the "overwhelming majority" of the rest "are to the majority's right" And, if that were not enough, Sunstein added Althouse should keep in mind that "[r]easonable people can differ, of course."
Sunstein concluded his explanation with the real kicker. Feigning mere academic curiosity, Sunstein claimed, "I wasn't looking (or hoping) for this pattern. It really surprised me. I really want to be in favor of [Judge] Alito and haven't made up my mind." That's right, the author of a new book entitled Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America isn't choosing sides when it comes to the ideological direction of the highest court in the land. Or, just maybe, reasonable people can differ about that, too.
November 17, 2005
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