Alito Senate Confirmation Hearings:  Precedent -- Secret Court Decisions

In the upcoming confirmation hearings, Judge Samuel Alito’s views about precedent and secrecy in government can be laid bare by addressing the record of his leadership in the adoption of proposed Federal Rule of Appellate Procedure (“FRAP”) 32.1 -- which will end a federal prohibition that forbids us to cite unpublished appeal decisions. (For some two dozen years now, we have been not allowed to mention in court (nor use as precedent) about 85-90% of many federal circuits’ and most states’ appellate decisions).

The “Alito Memo” issued by the U.S. Court of Appeals Advisory Committee on Appellate Rules in May 2004 while Alito was chairman is all about legal precedent and court secrecy.  Rather than speculating about whether Alito respects stare decisis, including Roe v. Wade abortion rights, by fathoming feelings about “choice” or “right to life,” it would seem more productive to approach his position with questions about FRAP 32.1.  Instead of limiting inquiry about secrecy in government to his reactions to warrantless domestic wiretapping surveillance (which Alito will surely decline to answer as this could involve a future “case” that may come before the Supreme Court), formulate questions on secret appellate decisions that he will be able to answer as they involve no “case,” but rather a new rule of public policy about which a prospective justice’s views, like those of members of Congress, are properly disclosed.

Recently, Alito and fellow committee member, John Roberts, twice voted for FRAP 32.1.  Roberts declared, “A lawyer ought to be able to tell a court what it has done.”  However, there was an enormous fight from U.S. 2nd Cir. Chief Judge John Walker, U.S. 9th Cir. Judge Alex Kozinski, California Chief Justice Ronald George, and hundreds of the nation’s highest judges.  Those judges who oppose Alito and Roberts on this issue do not want to be merely “umpires, just calling the balls and strikes.”  Rather, like “activists,” they want to play in the game, determining results instead of just finding them.  And, to cover-up their tracks, these opponent judges continue their ban forbidding any “instant replay” from being broadcast by citation -- so that the public does not know, and cannot mention in subsequent similar cases what the (same) courts have done in the past.  Hidden decisions are often “result-oriented”, and unpredictable.  Where the warranty of rightness is thus voided, randomness and chaos reign, litigation volume skyrockets, and democracy and an unaware, sedated republic pay a steep price.

FRAP 32.1 comes before the Supreme Court for final approval this April, and will become effective January 1, 2007, unless Congress changes it.  First Amendment (“prior restraint” of free speech) problems attend any prohibition, according to the Alito Memo, and equal protection, due process, and rights to petition government are shredded.

Ask Alito if he will continue to support FRAP 32.1 in its original form, or if he will accede to a “prospective only” limitation, continuing to prohibit mention of past unpublished decisions (which was adopted by the Judicial Conference of the United States in a September compromise forced by the opponents).

The Alito Memo and considerable background and research materials are available at   (

Michael Schmier, Attorney, Committee for the Rule of Law (Tel. 510-652-5450/0800)