Judge Samuel Alito on Federal Courts and Appellate Advocacy

People who know better than I are that predicting Judge Samuel Alito (CA3) will be the President's choice to replace Justice O'Connor.  During my second year in law school, Judge Alito guest-lectured in my federal courts and legal ethics classes.  His intelligence, graciousness, and humility were admirable.

He posed a couple of hypothetical questions to my federal courts class.  One question I remember was this: If a case is receiving a high amount of public attention, should the judge speed the along the docket, that is, give it a swifter resolution than it might otherwise have received?  I said, no.  A case is the case, and public perception shouldn't accelerate adjudication.  He disagreed, and said that it would be appropriate to move the case up since the public has an interest in the resolution of court cases.  He made it very clear that the public's opinion should not effect the outcome, but that judges should respect that courts ultimately serve the public.

Indeed, a lot of his lecture focused on public perception of the court and respect for democratic procedures.  Legal proceedings, and judicial opinions, he said, should be transparent because the public has a right to see clearly why a judge reached a given conclusion.  In other words, if a case is truly law, and not politics, a judge has no reason to fear public scrutiny.  This respect, and his overall humility, impressed me.  But what do you expect from a federal judge who bags his own groceries?

He also focused intently on jurisdiction.  Respect for separation of powers (and the democratic processes underlying jurisdictional rules) demands strict application of jurisdictional rules. 

These are just random bits, of course, but they're consistent with what others are saying, namely that he's a "process-oriented judicial-restraint type" of judge.

After his discussion, he opened the class for questions.  I also asked him several questions.  (To his credit, he tolerated me.)  One question was this: What's the most important part of an appellate brief?  His answer (paraphrased 2 years later): "The statement of facts.  I'm smart enough to figure out the law, and I have smart clerks who can find the law.  The only thing you know better than I is the facts.  If you give me the right facts, I'll be able to spot most issues."  I then asked: Should the statement of facts be written scholarly and objectively?  He smiled and replied: Well, don't slant them, but if they don't have the punch that a lawyer's advocacy should have, I'll wonder whether you believe in your case. Someone else asked him whether oral argument was a waste of time, and he said no.

In my legal ethics class I asked him a couple more questions.  I can't remember the questions, but I do remember thinking: "My, he's very deliberate."  He would weigh the precedent on either side of the issue - that is, cases where the law clearly would and would not apply - and then challenge us to determine whether our hypothetical case was closer to either end of the spectrum.  He presented the image not of a philosopher-king, but of a common law judge.