Alito is currently teaching a weeklong seminar to upper-year Duke Law students titled Current Issues in Constitutional Interpretation. It is his second year teaching at the Law School.
Levi took Alito chronologically through his life and career, beginning in Trenton, New Jersey, where he grew up. The son of two schoolteachers, Alito said he wasn’t sure how his background factored into his judicial temperament, but suspects his lifelong allegiance to the Phillies did.
While he had a choice, as a young New Jerseyan in the 1950s, to root for the winning New York Yankees, or the beleaguered Phillies, he benefited from choosing the latter, he said.
“There have actually been psychological studies of people who have grown up rooting for winning sports teams and rooting for losing sports teams,” he said. “For some reason I chose the losing team, and I think it had an effect on my thinking.
“It’s similar to Chicago,” he said, mentioning Dean Levi's hometown. “There’s a book called Your Brain on Cubs and it substantiates the fact that if you grow up rooting for the Cubs, it makes you smarter, more balanced, more critical in your approach, more realistic in your expectations.”
A foundation in appellate law
After graduating from Yale Law School in 1975, Alito clerked for Judge Leonard Garth on the U.S. Court of Appeals for the Third Circuit in New Jersey. The work set the tone for much of his early career, he said.
“I just loved that experience. I thought at the end of the clerkship, ‘What can I do that is most similar to what I did this year?’” He found what he was looking for in the appellate division of the U.S. Attorney’s Office in New Jersey, where he worked from 1987 to 1991.
Having established a working relationship with the Office of the U.S. Solicitor General, which consults with U.S. attorneys on various aspects of their cases, Alito pursued a job in Washington. In 1981, he became assistant to the solicitor general.
“It was a tremendous learning experience,” he said. “It was kind of a daunting experience to argue, initially, in the Supreme Court. I had argued dozens of appeals in the Third Circuit, but I still remember when I argued my first case in the Supreme Court. It was probably the most insignificant case the court had heard anytime during the 20th century, but I still remember when I stood up to argue … . I was extremely nervous about this, and a bit of time went by before there was a question. I was very grateful that Justice [Sandra Day] O’Connor asked the first question. It was a very gentle question, and I knew the answer.”
When asked whether or not he has shown similar mercy by asking “softball” questions of nervous attorneys appearing before the high court for the first time, Alito quipped, “I would if I could get a word in edgewise.”
One particularly challenging case he argued for the government was FCC v. League of Women Voters, which involved defending the constitutionality of a federal statute prohibiting editorializing by public radio and television stations. “Everyone viewed it as of questionable constitutionality from the beginning. In fact, Attorney General [Benjamin] Civiletti had declined to defend it … . When William French Smith became attorney general he thought it was really our responsibility to defend the statute.”
Alito stepped in to argue the case on the eve of oral arguments, after a colleague was called away from Washington. It was “a case I lost, and deserved to lose,” he said.
From clerk to colleague
Following his four-year tenure in the Office of the Solicitor General and another two in the Office of Legal Counsel, Alito became U.S. Attorney for the District of New Jersey. Overseeing the 65-attorney office for three years was “a very satisfying job,” he said.
In 1990, Alito was appointed to the U.S. Court of Appeals for the Third Circuit by President George H.W. Bush. The president called from Air Force One, Alito recalled. “I thought the connection was surprisingly good,” he joked. (Levi, who also was appointed as a federal district judge in 1990, said he never got the president’s call –– his wife did.)
Sitting on a bench with judges who knew him first as a clerk was “a little strange at the beginning,” Alito said. “It was particularly strange to sit on a panel with the judge for whom I had clerked. I think he sort of thought I was still going to write him bench memos about cases. But they treated me very well, even though some of them had 20 years of judicial experience, and I had a couple of days.”
While he admitted to being slightly hesitant in taking on a potentially lifelong appointment at the relatively young age of 40, Alito said his life had consisted of seizing opportunities. This opportunity, he said, surpassed all the others.
“None of the jobs I’ve had were planned,” he said. “I didn’t sit down at some point in law school and say, ‘I want to do this for a certain number of years, then I want to do this, then I want to do that,’” he said. “The opportunity in 1990 was a golden opportunity and I realized that it would very likely never come around again. For one thing, I’d never been involved in politics at all, and usually to be appointed a federal judge you have to know a senator or somebody involved in federal politics, and I didn’t have that benefit at all.”
The high court
Alito said he would have been happy to stay on the Third Circuit, if he hadn’t been selected by President Bush to fill the Supreme Court seat being vacated by Justice Sandra Day O’Connor in 2005; at the time of the nomination, he was next in line to be chief judge.
It was a call he wasn’t expecting, although Bush had interviewed him in 2001. The president had first nominated White House Counsel Harriet Miers, who withdrew prior to confirmation.
Alito recalled his confirmation process as a hectic series of days that began with a trip to the White House, followed by a drive to the Senate Office Building, where he was immediately surrounded by a crush of reporters toting microphones and cameras. Trying to have a conversation with a senator while the media observed was “a little difficult, a little strange,” Alito said.
“It was a bizarre process for me, because the job of court of appeals judge, which I had enjoyed for 15 years, was about as isolated as you can get,” he said.
The Supreme Court, said Alito, is highly collegial. Over their frequent shared lunches, the justices have a rule to avoid talking about work. Sports and opera, he said, are suitable topics of discussion.
He said the court benefits from being comprised of people with very different life experiences.
“It’s good when people who have different backgrounds, different personal backgrounds, different legal careers, are able to exchange their ideas on a multi-member court. I think when that happens, the product of the court can be greater than the sum of the parts.”