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Yale Law on Alito:
The New York Times has a story by Adam Liptak about how Yale Law professors and students are reacting to the nomination of Yale Law graduate Samuel Alito (as well as how Yale responded to the nominations of graduate Clarence Thomas and former professor Robert Bork). If you're wondering why Yale Law School's reaction to Yalies being nominated to the Supreme Court should be considered national news, keep in mind the bio of the story's author: Adam Liptak is a 1984 graduate of Yale College and a 1988 graduate of Yale Law School who was a law student during the Bork nomination.

  In any event, here is an excerpt from the story:
  The mood here appeared to be cautiously hostile. A few students who supported Judge Alito tended to make strategic or structural arguments. Some said, for example, that ideology alone should not derail a candidate who was otherwise qualified.
  "He is a remarkably careful, conscientious, craftsmanlike, modest, even humble judge," said Peter H. Schuck, a law professor who described himself as a political moderate. "It's true that he generally comes out on the side of those who call themselves conservative. If I were in the Senate, I would like to think I would not vote against him on that ground."
  But the dominant view, based on a day of interviews at the law school, appeared to be that Judge Alito's jurisprudence represented a betrayal of the law school's liberal values.
  Prof. Robert W. Gordon, who teaches legal history, said he had read all of Judge Alito's 15 years of opinions. "Alito is a careful carpenter," Professor Gordon said. "The things are well built, but they are not beautiful. Alito in my judgment is just too steadfastly conservative."
  For responses to various aspects of the story, check out Dan Solove, Tom Smith, and Will Baude.
Bottomfish (mail):
'Prof. Robert W. Gordon, who teaches legal history, said he had read all of Judge Alito's 15 years of opinions. "Alito is a careful carpenter," Professor Gordon said. "The things are well built, but they are not beautiful. Alito in my judgment is just too steadfastly conservative."'

Being a nonlawyer I wish someone could explain to me what a "beautiful" judicial opinion is. I naively hope that in forming an opinion the judge tries to take into account all of the relevant law, facts, and circumstances, and tries to make his opinion as firmly based in them as possible. Of course this is an inherently subjective exercise but one can still try to keep subjectivity at a minimum. That does sound like building something well but not necessarily beautiful. There must be examples of "beautiful" opinions that I could turn for enlightenment.
11.13.2005 2:56pm
AF:
The Times reporters seem to be battling among themselves to see who can write the most irrelevant, baseless, and news-free news articles on the Alito nomination. This one sets the new standard, after last week's effort on how Alito was "conservative by temperament but not ideology" or some such drivel.
11.13.2005 3:22pm
Rhadamanthus (mail):
Beautiful opinions vary depending on your own attitude. To some it would be an opinion that is well written as well as well argued i.e. abusive over-use of metaphors and similies; sarcasm and rage. If this is your cup of tea, try Justice Scalia's opinions (any of them but particularly the dissents). That said his dissent in Lawrence v Texas was in my eye beauty personified. It still abused the English language through excessive metaphor use but was a concerto of judicial opinion that should have left the majority looking away in shame.

The other form of beauty is an opinion that captures the heart rather than the eye. Typical here would be Justice Stevens' dissent in the flag burning cases; off hand I have a memory blan but......no it's gone, no it's Texas v Johnson. Dubious reasoning but I defy anyone to read it without a slight trembling of the eye-lids!!!

As I see beauty is in the eye of the beholder. Oh and before anyone vilifies me for saluting the Scalia dissent, I merely commented on his writing and reasoning; I was in total agreement with the result, just not the rationale.
11.13.2005 3:27pm
anonymous22:
Modern judicial liberalism as an ideology seems to me to have no philosophical basis except for the policy preferences of the liberal elite. Judicial conservatives can point to originalism, Madisonian dilemma, etc. I don't understand what liberals point to except a question-begging concept of "rights" alien to the conception held by the framers.
11.13.2005 4:12pm
Steve:
Yes, clearly the framers intended the Ninth Amendment to be an inkblot. What are those liberals thinking.
11.13.2005 4:17pm
18 USC 1030 (mail):
I think Prof. Kerr may have missed one of the most obvious points in the whole article (perhaps why he missed it?).

Four students recently chewed over the Alito nomination in the offices of The Yale Law Journal. Justin Florence, another founder of the group opposing Judge Alito, said the students had an important role... C. J. Mahoney, the one conservative student in the room, said, "It's interesting that you formed a stop-Alito group but not a stop-Miers group," referring to Harriet Miers, who withdrew her nomination last month. "In a perverse way, you have the inclination to stop someone who is qualified."


I think that is most indicitive of the absurdity of the whole thing; if one is not forming an anti-Miers group, they sure should not be forming an anti-Alito group. I understand the fact that he is from Yale and she is not, but I don't care; in speaking out against a nomination the comments should be based not on the good of an institution, but on the good of the nation. This is getting ridiculous and goes back to Prof. Volokh's post recently on "judicial activism" being defined as a decision one disagrees with, not an example of activism or radicalism on the part of a judge. Alito deserves to be questioned and made to prove his competency; however, these attacks from Yale are ridiculous.

One would thing the institution from which a SCOTUS nomination graduated would be in defense of that nomination in order to speak highly of the school. "We have __ graduates from this institution currently sitting on the Supreme Court of the United States," has a nice ring to it
11.13.2005 4:20pm
Mellow:
One might think that a super-qualified nominee to the Supreme Court would merit the loyalty of his/her law school. Yale Law thought Alito was accomplished enough to be admitted, accomplished enough to earn a spot on the Yale Law Journal, and accomplished enough to have the best moot court argument. But the argument goes that he's not good for the Supreme Court because of his conservative judicial philosophy.
11.13.2005 4:22pm
Nobody Special:
Yes, clearly the framers intended the Ninth Amendment to be an inkblot. What are those liberals thinking.

You'd be a lot more convincing if any of the "living constitution" types used the Ninth Amendment as a basis for their thought.

They don't.
11.13.2005 5:33pm
xx:
"I think that is most indicitive of the absurdity of the whole thing; if one is not forming an anti-Miers group, they sure should not be forming an anti-Alito group."

That doesn't make any sense. They probably didn't form an anti-Miers group because her nomination was falling apart without liberal help. There are other factors in what people spend their time on then how vicious the imagined threat is. By your logic, people are being "absurd" when they spend their resources preventing burglaries rather than preventing werewolve attacks, even though being attacked by a werewolf is much worse than being burglarized.
11.13.2005 5:37pm
Brian G (mail) (www):
If Yale Law Students think something is wrong with Alito, then the problem here is the Yale Law Students.
11.13.2005 6:07pm
Bottomfish (mail):
A Justice may be a master of sarcasm and invective but that should not be a basis for evaluation. When Professor Robert Gordon describes Alito as a careful carpenter whose "things" are well-built but not beautiful, he is revealing much more about himself than about Alito. Gordon is a snob who despises Alito as working-class. That ought to be very embarrassing to the leftists at Yale.
11.13.2005 6:56pm
ROA:
Another non-lawyer with a question: Exactly what does "too steadfastly conservative" mean? Does this mean he is constantly overruled by the Supreme Court, or is constantly a "lone dissent" or what? Or does it just mean professor Gordon doesn't like them? If that is the case, why doesn't the professor run for president so he can pick someone he likes?
11.13.2005 7:44pm
Major:
Who cares?

Four of us from UVA think Alito's just swell. When can I expect the AP to call?
11.13.2005 7:47pm
DRJ (mail):
Most of the Yale professors and students seem to be fairly tolerant as long as you agree with them. I guess Judge Alito missed that lecture when he was a Yale Law student.
11.13.2005 8:04pm
big dirigible (mail) (www):
Thinking back to the Clarence Thomas/Anita Hill imbroglio, I seem to recall a bunch of character witnesses from Yale Law who were, let's just say, very strange. Have things changed since then? (I'm an MIT man, and know nothing much about Yale.)
11.13.2005 8:49pm
tefta (mail):
I'll go out on a limb here, but I'll bet that Prof. Gordon is just too steadfastly liberal and proud of it. I guess if things are beautiful, they don't have to make sense.
11.13.2005 9:00pm
Siona Sthrunch (mail):
"I like to think that the work of a judge is an art . . . After all, why isn't it? It is what a poet does, it is what a sculptor does. He has some vague purposes and he has an indefinite number of what you might call frames of preference among which he must choose; for choose he has to, and he does." Learned Hand, at Proceedings of a Special Session of the 2d Circuit in Commemoration of His Having Completed Fifty Years of Federal Service.

For beautiful opinions from Hand, see US v. Carroll Towing or Nichols v. Universal Pictures or Peter Pan Fabrics v. Martin Weiner Corp.
11.13.2005 10:50pm
anonymous22:
Beauty is in the eye of the beholder. I don't think anyone would accuse Ruth Bader Ginsburg or Stevens's opinions of beauty. Kennedy's opinions have a gag-inducing sort of saccharine quality (think of the infamous "meaning of life" section from Casey). O'Connor's opinions have a wonderfully mediocre quality which will be difficult for future justices to replicate.
11.13.2005 10:57pm
xx:
I would "accuse" several of Stevens opinions of being beautiful.
11.13.2005 11:51pm
Gene Vilensky (mail) (www):
My favorite is the Bruce Ackerman quote:

Professor Bruce Ackerman, who teaches constitutional law here, appeared on CNN with this instant assessment: "I don't think conservative is the word. This person is a judicial radical."

Wow, what an awful hack that guy is. No person in their right mind could call Alito a judicial radical. Wow, just when I thought that Chemerinsky's behavior during the Roberts nomination was disgraceful, I think that Ackerman takes the cake for hackery.
11.14.2005 12:43am
b.trotter (mail) (www):
I think "Beautiful" must clearly be defined by Professor Gordon as meaning "Liberal"... in other words, he doesn't agree with them.

Alito doesn't riddle his rulings with sarcastic comments about the intelligence of the lawyers arguing cases like Scalia... occassionally I view Scalia's arguments as beautiful.

The very sentence by Gordon reveals an inherent contradiction. He's saying that Alito constructs his arguments well, that he uses the proper tools, and yet is somehow reasoning that despite doing everything correctly, he's getting it wrong. If he's getting it wrong, then he's not using the proper tools (i.e. stare decisis, or a correct interpretation of the constitution). So which is it, Professor Gordon?
11.14.2005 1:35am
Yale Law Student:
As a Yale Law student, my sense is that although most students don't like Alito's conservatism, few are claiming that he shouldn't be approved by the Senate.

As for flaws in Liptak's article, I'd like to note that although he quotes Tony Kronman, the former dean, he doesn't quote him as supporting Alito, even though he has already gone on the record as doing so. Also, note how Liptak identifies an Alito supporter as the president of the Yale Fed Society, yet fails to identify the head of students against Alito as also being the head of the Yale chapter of the American Constitution Society.
11.14.2005 8:08am
DNL (mail):
YLS: It sounds like you have the rough draft written for your letter to the Times.
11.14.2005 9:34am
Tumbling Dice:

You'd be a lot more convincing if any of the "living constitution" types used the Ninth Amendment as a basis for their thought.

They don't.


That's rather circular isn't it? The 9th stands in the way of much of what they want. Why would they rely on it?
11.14.2005 10:15am
mshyde (mail):
"Alito is a careful carpenter," Professor Gordon said. "The things are well built, but they are not beautiful. Alito in my judgment is just too steadfastly conservative."

So Professor Gordon is concerned at the steadfastness of Alito? Would he rather the man flipflop from one position to another as some in congress do? That would make
his foundation he stands on as quicksand, not very stable or
productive.
11.14.2005 10:50am
Dave-TuCents (www):
When I read "The things are well built, but they are not beautiful." I heard "I can't find a weakness to argue against but I don't like the result."

Tells me a lot more about Gordon than Alito.
11.14.2005 4:20pm
Joe Jackson:
I seriously doubt that Robert Gordon has actually read all of Alito's opinions.

Sorry Bob, but "I've read them 'all'" and "they are not 'beautiful'" does not have enough substance to convince a fourth-grader. Next time the NYT is interviewing you, try to say something coherent.
11.14.2005 5:33pm
mike (mail):

Beauty is in the eye of the beholder. I don't think anyone would accuse Ruth Bader Ginsburg or Stevens's opinions of beauty. Kennedy's opinions have a gag-inducing sort of saccharine quality (think of the infamous "meaning of life" section from Casey). O'Connor's opinions have a wonderfully mediocre quality which will be difficult for future justices to replicate.


That's one of the funniest things I've read in the VC comments. I'd add that Thurgood Marshall's opinions were like the crazy old aunt in the attic...everyone did their best to pretend they didn't exist because they were so insane and embarrassing.
11.14.2005 11:00pm
Ex parte McCardle:
I spent the last six years at Yale, not in the Law School (though I'm a lawyer). It's just as wacky as you might picture from the comments.

A couple of years ago, Bruce Ackerman told the Yale Daily News "It's impossible to imagine a worse president" than George W. Bush. Of course, it's actually absurdly easy to imagine a worse president: Bruce Ackerman. Stakeholder society, anyone?
11.15.2005 9:11am
Clayton E. Cramer (mail) (www):

Yes, clearly the framers intended the Ninth Amendment to be an inkblot. What are those liberals thinking.
If you want anyone to take your interpretation of the Ninth Amendment seriously, then you will need to have a consistent and logical model for it.

1. Does the Ninth Amendment limit only the federal government or the state governments as well? It seems without question that it limits the federal government--at least with respect to the unenumerated rights--but to see it as limiting the states seems a bit of a stretch. While people like Madison had privately hoped to see the Bill of Rights as a protection of individual rights against both federal and state governments, his was distinctly a minority view. There is also no evidence suggesting that either proponents or opponents of the Fourteenth Amendment understood the "privileges and immunities" clause to incorporate anything but Amendments I through VIII against the states.

2. How do we determine what "unenumerated rights" were retained by the people? The obvious method is to see what was lawful and what was unlawful in 1789. It is simply implausible that Congress intended sodomy as an unenumerated right when it was unlawful in every state. Ditto for abortion, which at least after fetal motion was considered a criminal matter at the time.
11.15.2005 11:44am