Howard J. Bashman's appellate columns, etc.

One Local Jurist Prepares To Join The Supreme Court,
While Another Prepares To Leave It

By Howard J. Bashman
Monday, November 14, 2005
Since my last column appeared in these pages some four weeks ago, U.S. Supreme Court nominee Harriet Miers has mercifully receded from memory as though a bad dream. In her place, President Bush had the good sense to nominate the Third Circuit's own Samuel A. Alito, Jr., an outstanding judge whom many of us in the Philadelphia region know well.

Not only would Judge Alito be the first Third Circuit judge to join the U.S. Supreme Court, but he would also be the first Phillies fan to serve on that Court in quite some time. With a fifteen–year record of deciding cases on the Third Circuit -- including cases involving some of the hot–button issues of our time, such as abortion rights and the death penalty -- Judge Alito's nomination brought an abrupt end to his time under the radar. He now faces a far more hectic than usual holiday season, with a Supreme Court confirmation hearing due to get underway early in 2006.

Over the years I have followed closely Judge Alito's rulings, including many in cases on which I have worked. In the area of civil litigation, I have found his rulings to be often unpredictable and thus not what one would expect from a reliably doctrinaire conservative. In criminal law cases, however, Judge Alito does seem to be usually pro–government, as one might expect of a former federal prosecutor.

There is no denying that Judge Alito is incredibly smart, although in personal interactions he comes across as soft–spoken and kind, often to the point of seeming shy. During oral argument, he is respectful toward counsel, sometimes asking difficult questions but never being difficult himself. Judge Alito is not someone who dominates oral arguments at the Third Circuit, making him unlikely to do so at the U.S. Supreme Court.

Once President Bush tapped Judge Alito for the Supreme Court, and Judge Alito experienced the glare of the national media's spotlight, early press coverage repeatedly invoked the sobriquet Scalito, as though Judge Alito were a diminutive clone of Justice Antonin Scalia. While I count myself among those who view a favorable comparison to Justice Scalia as a compliment, in Judge Alito's case the comparison strikes me as especially unfair. Whereas Justice Scalia has a brash personality and is a polarizing force on the Court, where he is typically either unwilling or unable to compromise his strongly–held jurisprudential beliefs, Judge Alito is a modest, low–key individual who has earned the respect of both his liberal and conservative colleagues on the Third Circuit.

One of Judge Alito's accomplishments is particularly noteworthy in connection with the respect for precedent that he has displayed thus far in his lengthy judicial career. While serving as chair of the Advisory Committee on Appellate Rules of the United States Courts, Judge Alito spearheaded the effort to allow attorneys to cite to non–precedential federal appellate rulings in all federal appellate courts.

Appellate courts that decided cases using non–precedential rulings but then prohibited anyone from citing to such decisions were improperly unconstrained from acting like legislatures, deciding one case one way today and then deciding an all–but–identical case the opposite way tomorrow. Thanks to the controversial rule change that Judge Alito shepherded through the approval process, over the initial objections of many of his judicial colleagues across the nation, appellate judges are unable to avoid the consequences of being reminded that they decided one case a certain way today when an indistinguishable case comes before the same court tomorrow.

Proposed Federal Rule of Appellate Procedure 32.1, which is now in the final stages of the rule approval process, demonstrates that Judge Alito has deep respect for precedent and understands that courts do not appropriately assume the role of legislatures deciding each case on an individual, ad hoc basis free from the constraints of earlier rulings. He is not a results–oriented judge; rather, he is a judge who properly believes that appellate courts should not easily evade their earlier rulings just because of a change in membership or a change of mind.

As matters now stand, it appears that Judge Alito's nomination will not be subject to a filibuster and that he will be confirmed to the Supreme Court before the end of January 2006. Justice Alito will join the Supreme Court lacking any personal agenda to change existing law and fully accustomed to operating under the constraint of precedent. While no one can know for sure what the future will bring -- as the past month's events have vividly demonstrated -- President Bush surely could have nominated other, even more controversial, candidates whose previously expressed views in favor of overturning hot–button precedents would have caused liberals even more trepidation than Judge Alito's nomination reasonably should.

Unexpectedly, next month Pennsylvania will experience another Supreme Court–related first, as the first state appellate court judge ever to lose a retention election departs from the bench. Due largely to the electorate's deep–felt dissatisfaction with a large, sneakily obtained legislative and judicial pay raise, last week Pennsylvania's voters narrowly failed to retain Justice Russell M. Nigro on the Supreme Court of Pennsylvania. He thus becomes the only Pennsylvania appellate judge ever to lose a state–wide retention vote. And his one colleague on the Court who also stood for retention last week, Justice Sandra Schultz Newman, narrowly avoided the same fate.

In retrospect, Justice Nigro did not take seriously enough the threat that Pennsylvania's voters' outrage toward the pay raise would be successfully channeled into a majority vote against retention. As a result, in the very near future Governor Edward G. Rendell will need to nominate an interim Justice who, subject to legislative confirmation, will serve through 2007 until the results of the next judicial election can be implemented.

Interestingly, even the proposed so–called "merit selection" process for Pennsylvania appellate judges would allow voters to cast ballots up–or–down on the issue of retention after the appointees have served an initial period on the bench. Thus, even under a "merit selection" system, voters could remove sitting judges from the bench based on whatever reason then captures the attention of the electorate.

In order to switch from the current system of electing judges to a "merit selection" system, Pennsylvania's voters would need to approve a constitutional amendment bringing about the change. The statement that Pennsylvania voters made last week by rejecting a sitting Pennsylvania Supreme Court Justice suggests to me that the electorate in Pennsylvania is not eager to cede to the Governor and the Legislature the power to decide which individuals should go onto the bench as appellate judges in Pennsylvania.

The electorate's decision not to retain Justice Nigro could be characterized as irrational, because the decision was not directly based on any rulings or actions that Justice Nigro took in his capacity as a member of the Pa. Supreme Court. Moreover, a raise in the wages paid to state judges in Pennsylvania was well–deserved and long overdue. It is extremely short–sighted for Pennsylvania's voters to think that they can continue to attract the best and the brightest to serve as state court judges in exchange for a salary that is far too low. Ironically, former Justice Nigro is now on the verge of earning a much higher salary in the private sector.

Years from now, we will remember the past month as a time that taught several useful lessons. The rejection of Justice Nigro has demonstrated that populism within the electorate is a force that should never be underestimated.

The withdrawal of Harriet Miers's nomination to the U.S. Supreme Court has demonstrated that an appearance of cronyism coupled with an apparent lack of qualifications make for a less–than–compelling nominee.

And the nomination of Sam Alito demonstrates that, as was also the case with Chief Justice John G. Roberts, Jr., sometimes we do get the appellate judges that we deserve -- the best and the brightest -- with a refreshing dose of modesty and humility mixed–in.

This article is reprinted with permission from the November 14, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.