Cass R. Sunstein, professor at the University of Chicago and author of an op-ed in today's Washington Post, was online Tuesday, Nov. 1, at 1:15 p.m. ET to discuss President Bush 's nomination of appeals court Judge Samuel A. Alito, Jr. to the Supreme Court.

The transcript follows.
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Los Angeles, Calif.: Can you comment on Judge Alito's record on cases involving gays and lesbians?Cass R. Sunstein: Don't know of any cases of his involving gays and lesbians. There may be some, but I haven't yet found any.
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Newark, N.J.: I helped represent the Hindu Group in the Four Three Oh case, 256 F. 3d, 107, in which Alito dis-sented and actively supported the municipality's effort to stop the conversion of a disco into a temple for worship. He certainly knew land use law from an academic point of view, but, he applied it very poorly. His problem was readily accepting the government's version of the facts (which were utterly unsupported by the record), which made it clear that he did not carefully examine the facts before launching into his dissent. And it amazes me that the right wing supports this guy, when he went to such lengths STOP a religious group. Your thoughts?
Cass R. Sunstein: I'm not sure how to evaluate this case, but I can say I was a bit surprised by his decision to sign with the zoning board.
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Gothenburg, Sweden: Sir, you divide judges into three categories: perfectionists, minimalists and fundamentalists. Is Mr. Alito a minimalist conservative?
Cass R. Sunstein: I'm not sure whether Alito is a minimalist. He doesn't speak of the "original understanding" in his lower court opinions, but from what I've seen, he's more predictable than minimalists tend to be. On the other hand, he doesn't favor ambitious, broad rulings.
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Albany, N.Y.: How can anyone legitimately argue that Alito is "outside the mainstream", whatever that means anyway, when his views are similar to at least three sitting Supreme Court justices and half the Senate?
Cass R. Sunstein: I don't think it's productive to say he's "outside the mainstream." That's like an epithet -- it's like saying, he's bad!
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San Juan, Puerto Rico: Hello:
In your view, is Alito an "ideologue," or more of a moderate jurist with a "conservative philosophy"?
Many thanks.
Cass R. Sunstein: I wouldn't describe Judge Alito as an ideologue. He does have quite conservative voting patterns, though -- frankly I'm a bit surprised by them.
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Philadelphia, Pa.: Where is the outrage that President Bush did not appoint a female to replace Sandra Day O'Connor -- even after Ms. Miers?
Cass R. Sunstein: Is it really outrageous that Pres. Bush didn't choose a woman? Not clear that outrageous is the right word, in my view.
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Kettering, Ohio: You stressed many cases that had traditional conservative-supported outcomes, but none that fa-vored traditionally liberal outcomes, such as bearded Muslim police offices case. Do you mean to suggest that Alito is a flaming conservative that can't be trusted with this position?
Cass R. Sunstein: I don't mean to suggest that Judge Alito is a flaming conservative! Actually I meant just to say what I'd learned, not to express a view about confirmation. Information first, decisions later, mightn't you agree?
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Fairfax, Va.: Will Senators be able to ask Alito about his rationale for the cases you cite in your article today? Or due to some excuse we haven't heard yet, or one we have heard, those questions will be deflected. If that is the case what kind of revelatory questions can be asked?
Cass R. Sunstein: I think Judge Alito will be asked about his rationales, and that he will provide them. He always has decent rationales, by the way; it's the pattern of conclusions that's noteworthy.
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Arlington, Va.: In your op-ed, you wrote that Judge Alito "has rarely been more liberal than his colleagues." What are the types of cases in which he has been more liberal than other members of the panels on which he has served?
Cass R. Sunstein: I'm not sure that there's any case in which his position can clearly be described as more liberal, but there are a few possibilities. In one, he said that the US Attorney's Office could bind the INS, in a deportation con-text -- I think that view helped someone trying to avoid deportation. (Haven't read the case carefully.)
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Detroit, Mich.: I read your op-ed piece and I understand the concern for how Alito might help decide cases in the Supreme Court, given his past opinions on cases. However, as bad as that may be what can be done about it? Any voter with any sense in the 2004 presidential election knew that there was a high likelihood that Bush would be nominating Justices to the Supreme Court in a possible second term and that a Senate controlled by Republicans would confirm any right-wing nominee. The majority of voters in 2004 (in contrast to 2000) actually voted for Bush and this is now what we get.
Cass R. Sunstein: Pres. Bush, under our system, isn't entitled to the confirmation of all his choices. It's just fine to have a dignified discussion of his appointees. If they're rejected, after that discussion, that's fine too. The views of the American citizenry matter a lot, fortunately. Of course Pres. Bush was elected, and what he wants matters, a lot. But it isn't conclusive on particular nominees.
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Arlington, Va.: Professor Sunstein,
How do you respond to evidence that does not support your thesis? For example, one of Alito's former clerks called his majority opinion in the 1993 case Fatin v. INS, "one of the most progressive opinions in asylum law on gender-based persecution." One does not normally associate a results-oriented conservative -- as you delicately imply Alito is -- with authoring "progressive" opinions.
Cass R. Sunstein: Very few of his dissenting opinions go in the progressive or liberal direction. Possibly some, but very few. The overwhelming majority go the other way, which is relevant information, at least.
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Anonymous: Is it possible that a close examination of Alito's logic might me more instructive than a simple state-ment of conclusion?
Thought processes are often more revealing than the final conclusion.
Cass R. Sunstein: Agreed. It would be best to read his opinions and his rationale. I didn't have the space to get into that! But the pattern of conclusions is important too.
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Charlottesville, Va.: Your op-ed today stressed the results, in isolation, of case after case in which Judge Alito dis-sented. It seems disingenuous to suggest that these decisions are made in the absence of any legal reasoning or rules that Alito might have been following. It is no wonder today that no one recognizes that the disputes brought before courts are difficult and permit disagreement. As a law professor, how can you ostensibly justify fueling this dangerous game of judging the merits of legal decisions exclusively on the results rather than the reasoning?
Cass R. Sunstein: I don't think I did what you think I did! Hope not.
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Dayton, Ohio: Prof. Sunstein - why are you surprised by Judge Alito's conservative voting patterns?
Cass R. Sunstein: I thought that as a judge with a superb reputation, he'd show more moderation -- that his dissents would sometimes urge a more liberal view. Many conservative judges show more surprising patterns than Alito appears to -- just as many liberals show more surprising patterns than across-the-board liberals do.
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Los Angeles, Calif.: Hello, why should any Supreme Court be allowed to overturn rulings of a previous Supreme Court?
Cass R. Sunstein: Because they might be wrong, and cause a lot of harm! The Court used to permit racial segregation, after all. And it used to forbid minimum wage legislation too.
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Va.: Mr. Sunstein, would the GOP actually benefit if the Supreme Court overturned Roe? It seems to me that if most people in the U.S. favor abortion rights, the party actually stands to lose if they accomplish this stated goal. What are your thoughts?
Cass R. Sunstein: Agreed. The Republican Party would be hurt, not helped, if the Court overruled Roe. The Democratic Party would be helped, possibly a lot, by that overruling.
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Falls Church, Va.: What is the name and citation of the employment discrimination case you described where Alito agreed with a trial court ruling barring the right of cross-examination of a witness who had given the employee an unfa-vorable performance evaluation?
Cass R. Sunstein: Glass v. Philadelphia Electric Co, 34 F3d 188.
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Jessup, Md.: As a practicing lawyer of 20 years, I have to take issue with your characterization of Judge Alito's dissents as never reckless, irresponsible, or far reaching. To the contrary, his dissent in the Casey case, among others demonstrates how far Judge Alito is willing to take surmises about the impact of state regulation of abortion rights. As an antitrust attorney, he strikes me as being quite similar to many economists in using their intuition to make baseless con-clusions without regard to the real impact or facts in a case. You do a disservice to the law when you white wash his activist conservative record.
Cass R. Sunstein: Well, we can agree to disagree. Some opinions are wrong without being reckless.
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Portsmouth, N.H.: Is the Senate Judiciary Committee's charge to evaluate Judge Alito's qualifications, or speculate on how he will vote on controversial cases after he is approved to sit on the Court?
Cass R. Sunstein: Both. At least the Senate is permitted to consider a nominee's general approach and likely voting patterns overall.
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Philadelphia, Pa.: A lot of people bring up the conservatism, but how is he in terms of qualifications and legal abili-ties and personal character? I know he has a huge resume, but have there been legal scholars outside the right who rec-ognize him in terms of intellectual abilities? Is he known for dedication, sense of humor, or personal warmth? This is terrible, but when they were doing comparisons with Scalia, I noticed in the side by side pictures, Alito was smiling and Scalia had a very straight face. He does seem conservative, but not in a knee jerk whiplash way. He's clearly going to side with Scalia and Thomas on many issues, but I think perhaps the greatest similarity with Roberts, is that based on what we know, we can't categorize either of them into a definite camp, ideologically.
Cass R. Sunstein: Everyone seems to like Alito. I don't think that's especially relevant, though; this isn't a popularity contest.
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Va.: How much do you think Alito's rulings are influenced by the fact that he's Catholic? I know that ideally a jus-tice should put aside his or her feelings, religious beliefs, etc when making a decision, but I just don't buy it. Everyone is influenced by their beliefs, and everyone tries to do what they think is "right." And to some degree, it horrifies me to think that if Alito is confirmed, we'll have a Supreme Court that's 5-4: 5 Catholics, and 4 NonCatholics. Sounds like a guaranteed ruling against abortion rights, gay rights, civil liberties, and religious freedom every time. Among other things...
Cass R. Sunstein: It's probably best to put religion entirely to one side, in a nation like ours. I don't see any evidence that his legal views are influenced by his religious convictions.
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Southfield, Mich.: Your op-ed article describes Alito as being conservative. Many commentators, and apparently a number or Senators, apparently view being conservative as a disqualifying characteristic for a Supreme Court Justice, often using the term interchangeably with radical and extremist. Just to be clear, do you find Judge Alito's views to be within the judicial mainstream, or is your view of the mainstream limited to encompassing only certified liberals and moderates?
Cass R. Sunstein: Many conservatives are fine. Extremists aren't fine. I don't have a final view on Judge Alito, though I don't consider him an extremist. The question is what kind of conservative he is: Is it doctrinaire, in any way? If so, that's an issue at least. To the President's credit, he has nominated something with strong credentials.
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Kennesaw, Ga.: Good afternoon, Professor Sunstein.
Can you give us a sense about the extent to which Judge Alito is more or less conservative than John Roberts?
The organized interest groups that dominate the national Democratic Party obviously opposed Roberts, and will oppose Alito. But every Senate Republican and about half of the Senate's Democrats voted to confirm Roberts. What would they point to about Alito's personality or record that is more "radical" or "right-wing" than Roberts?
Cass R. Sunstein: His lower court conclusions seem to me more consistently conservative than Judge Roberts' did.
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Erie, Pa.: Prof. Sunstein, At what point does a law become settled to the point where only an "activist" judge will overturn it?
Cass R. Sunstein: Well, the word "activism" is often an all-purpose complaint. Sometimes very settled law is legitimately overturned, but there has to be a VERY good reason to do that.
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Long Beach, Calif.: I understand the Judge has worked almost entirely with government and never had a private in-dividual as a client during his law practicing days.
Is that total lack of experience with the needs of the average-non-millionaire-lawyer public part of why his deci-sions limit freedom and test how far an issue can be pushed?
Is this guy "Bork-sans-beard"?
Cass R. Sunstein: Judge Alito is a different type from Judge Bork; the latter had a worked-out theory of constitutional interpretation (follow the original understanding!) and it's not clear that Judge Alito has any such theory. Both of them have a great deal of relevant experience, so that's not a problem.
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Washington, D.C.: Professor:
Does conservatism equate with favoring executive over legislative power in your mind?
Cass R. Sunstein: Not really, though many conservative judges, of late, have big fans of executive power as well. Some liberals agree with them!
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Arlington, Va.: Professor, what would be more valuable to conservatives in the long run? An strict originalist along the lines of Thomas who can write the opinions that conservatives love or someone like Roberts who would be more likely to persuade a Kennedy to join when there a right/left 4-4 split?
Cass R. Sunstein: I wonder if it's good to think in those terms. Liberals shouldn't think: What's best for liberals? So too, conservatives shouldn't think: What's best for conservatives? Not to be sentimental, but the question is: What's best for the country? Originalism a la Thomas isn't the answer.
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McLean, Va.: In an earlier answer, you said that you were surprised he sided with the zoning board in the Hindu case. Could you elaborate? Are you surprised because you thought that the zoning board did not have a defensible posi-tion, or because you thought his opinion was out of character for him?
Cass R. Sunstein: I was surprised because the case turned on a lot of factual details and the majority opinion was at least reasonable. To dissent, in those circumstances, is slightly surprising.
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West Palm Beach, Fla.: Professor Sunstein,
Really, I would all this attention on Judge Alito be reverted to Friday's news and that is the indictment of a key White House for lying and obstruction of justice.
Can't we just say that Judge Alito is well educated, highly intelligent, and with many years of Federal Appeals ex-perience, and for all intents and purposes, highly qualified for the position to which he is nominated.
The President has the right to make such a nomination.
So it seems to me, that the scandal brewing in the White House is much more important because its effect on the leadership of this nation will have greater impact.
Cass R. Sunstein: Well, it's important to evaluate the nominee's general approach, as well as qualifications. Don't you agree?
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Monterrey, Mexico: Hi Prof. Sunstein,
What criteria do you use to determine that a conclusion is surprising considering the argument that supported it? It seems that you are making the point that Judge Alito's method of reasoning is sound but that the conclusions he draws from it sometimes are not. Where is he going "wrong"?
Cass R. Sunstein: To answer these good questions, we'd have get into a lot of detail about the cases, I'm afraid. I was more struck by the general pattern of his dissents than by any particular one.
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Prescott Valley, Ariz.: Has Alito made any judicial decisions, speeches, or articles related to the authority of the ex-ecutive branch vis-a-vis the judicial and the legislative branches?
Cass R. Sunstein: I'm unaware of any, but some may turn up!
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Baltimore, Md.: Nominating Alito puts Bush back in the driver's seat. We Republicans love it because we want this battle of ideas and Democrats are waffling because they don't want to admit they're for abortion, gay marriage and the rest. But this Supreme Court means so much to them that they are going to be forced to be who they really are. I'm in ecstasy.
Cass R. Sunstein: Hurray for your good spirits!
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Belleville, Ill.: Those who support Alito state that "the Court should not be politicized," which is a disingenuous at-tempt to cut off debate. It seems to me (IANAL) that the Constitution is a political document, conceived in a political process and governing a political government. Why, in that milieu, should political tests NOT be applied? The whole process is political. Your comments?
Cass R. Sunstein: The nominee's approach to the Constitution and the law are certainly fair game. But the process should be dignified, and sometimes politicization isn't so dignified.
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Washington, D.C.: How will his opponents block his nomination to the Supreme Court? Unlike Roberts, he has a record. Unlike Miers, he is experienced. Unlike Bork, he won't give the Senators a debate -- or will he?
Cass R. Sunstein: Too early to talk about blocking -- too early, in my view, to talk about being an "opponent." Best to learn, and then to act, yes?
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Boulder, Colo.: Two questions, actually: (1) What, in your view, are legitimate reasons for the Senate to withhold its consent to a Supreme Court nomination? (2) Where in the world did the notion (now discredited in the Miers deba-cle) that judicial nominations deserve an up-or-down vote come from? It doesn't seem to emerge easily from the lan-guage of Art. II, sec. 2 "-The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...").
Cass R. Sunstein: On (1), Incompetence or unacceptable views (giving the President some -- not total -- deference on the latter question).
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Arlington, Va.: Prof. Sunstein -
As a conservative judge serving on a court widely considered liberal, did Judge Alito show a tendency to seek con-sensus when crafting majority opinions, or, as in the Casey decision, was he more likely to "go it alone?"
Cass R. Sunstein: The record doesn't quite show. Certainly he wrote separately a fair bit. I wonder about the charac-terization of the Third Circuit as quite liberal -- it consists at least half of Republican appointees. It's relatively liberal, but that's relative.
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Sarawak, Malaysia : I was extremely offended by the arrogant tone, tenor and gloat of George Will in his despica-ble column today (1 November 2005). How would you respond to Will's gloat that Democrats would lose the debate over the role of the judiciary? My view is that there is no need for the Senate Judiciary Committee to ask what Alito's views on Roe v Wade would be: at the first opportunity he would join Scalia and Thomas to overrule it or at least chip away at it. He would toe the line of the Christian right in such matters as abortion, death penalty, separation of Church and State. The neo-cons would also have their way as regards matters such as presidential powers to ignore the 1949 Geneva Conventions and breaches of civil liberties in the name of 'war on terror' and 'national security' would also be-come 'protected'.
Liberals and perhaps even moderate conservatives must 'pray' for the health, longevity and staying powers of the 85 year old Associate Justice John Paul Stevens for if the Stevens seat were to become vacant during Bush's presidency then a seat that has been moderate/liberal since 1939 would dramatically change course enabling Bush and his coterie to mold the United States politically, socially and legally 'according to Bush and his coterie'.
Cass R. Sunstein: Not sure about some of what you say, but I don't agree with George Will on this one.
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Silver Spring, Md.: Has anyone tried to guess why Harriet Miers was originally more qualified than anyone else, including Alito? Other than her job on Bush's staff, of course.
Cass R. Sunstein: I think Pres. Bush trusted her, because he had seen her in many situations, and he respected her judgment.
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Richmond, Ky.: Professor Sunstein, given your comments at the end of your article: ("His disagreement is unfail-ingly respectful. His dissents are lawyerly rather than bombastic. He does not berate his colleagues. Alito does not place political ideology in the forefront.
Nor has he proclaimed an ambitious or controversial theory of interpretation. He avoids abstractions. He has not endorsed the view, associated with Justices Antonin Scalia and Clarence Thomas, that the Constitution should be inter-preted to fit with the "original understanding" of those who ratified it. Several of his opinions insist on careful attention to the governing legal texts, but that approach is perfectly legitimate, to say the least.")
Are there circumstances under which a "consistently conservative" judge would gain your support for the Supreme Court? Or does a lack of moderate decisions disqualify a jurist in your opinion?
Cass R. Sunstein: I don't have a bottom line on Alito. I'm still reading.
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Roman Catholicism: While it might be fair to assume a Roman Catholic will oppose abortion and gay marriage, I don't have a clue why the chatter thinks Catholics oppose civil liberties and religious freedom. They simply don't.
And I might remind everyone that Ted Kennedy and John Kerry are practicing Roman Catholics.
Cass R. Sunstein: Religion ought to be irrelevant in this wonderful, pluralistic country.
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Dunn Loring, Va.: We keep hearing how Alito will not act consistent with O'Connor's positions, but isn't it true that on several occasions O'Connor actually switched her position on key issues?
Cass R. Sunstein: I don't think O'Connor switched much, actually.
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Washington, D.C.: Could you comment on Judge Alito's use of stare decisis and legislative history in his jurisprudence? Does it differ from that of then Judge Roberts?
Cass R. Sunstein: Great question. Judge Alito appears to downplay legislative history, which Chief Justice Roberts paid attention to, at least. On that count, Alito is clearly with Scalia, who also dislikes legislative history. On stare de-cisis, not yet clear -- there are about 300 total opinions to read and I'm only through about 60 of them.
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London, U.K: Would diversity on the Court begin to matter if the Court's make-up of (extremely qualified) judges ever becomes - 4 women, 2 Hispanic men, 2 African-American men, and 1 lone white male?
Cass R. Sunstein: Not sure diversity much matters now!
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Great Falls, Va.: Prof. Sunstein,I've noticed a number of posts and articles about a seat being moderate/liberal, and that should affect who is chosen to replace that seat. But doesn't that pre-suppose that the Court should tilt one way or the other? Put another way, if the American People elect Republican Presidents for 20 of the last 28 years, should the Court be differently comprised than it was during the 1930s and 40s?
Cass R. Sunstein: Agreed. There's no reason to think the Court should continue with the same constellation of views -- unless we actually like that constellation on the merits.
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Chicago, Ill.: What do you think of what's become the standard non-answer by judicial nominees: "I can't answer what I think of _____, because it might come before the Court." To take Roe as an example, don't we already know what the other eight Justices think of Roe, so why can't we hear what the nominee thinks?
Cass R. Sunstein: I think the standard answer is fine. Nominees shouldn't trade their votes for the Senator's votes, and it's good to keep an open mind until there's an actual case.
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Washington, D.C.: Alito scares me, but then again, most everything done or put forth by President Bush and the Bush administration scares me. If one were to have issues with Alito, to whom should one make that known? And really, will it do any good?
Cass R. Sunstein: Tell your Senator, if you like Alito or don't like him; or even tell lots of senators. That's part of democracy in action.
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Washington, D.C.: What are Judge Alito's views when it comes to civil rights? If I understand it right, Harriet Miers' nomination had its final blow when it came out that she supported civil right issues. Does that mean Judge Alito has a different view?
Cass R. Sunstein: He tends to be quite conservative on civil rights issues; my op-ed gives lots of examples. Actually the word "conservative" might be misleading. Let's say that in hard cases, he's tended to side with those accused of violating people's civil rights.
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Fairfax, Virginia: Given that Alito appears to be a conservative's conservative who would end the era of 5-4 deci-sions, in what sense would it be legitimate to call a Democratic filibuster "obstructionist"? Are the Democrats required to give the President the nominee he wants because he won the election?
Cass R. Sunstein: Certainly the Democrats aren't obliged to defer to the President's choices (Republicans aren't either!). But filibusters are, and should be, rare, in a system that respects majority rule.
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Winthrop, Mass.: How activist is Judge Alito? The conservatives on the current Supreme Court have been dramati-cally more likely to overturn or limit laws passed by elected bodies than those SC Justice more to the center. Does Judge Alito have the same extreme record of activism?
Cass R. Sunstein: Not clear, but he did vote to strike down the congressional ban on the possession of machine guns, in a noteworthy dissent.
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Chicago, Ill.: It seems to me that Judge Alito's machine gun/federalism case says a lot about what kind of justice he will be. I haven't read his opinion yet, but was he claiming there were no interstate effects from the sale of a machine gun?
Cass R. Sunstein: He said Congress needed to require an interstate nexus, as I recall -- and that mere possession, without such a nexus, couldn't be reached under the commerce clause.
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Washington, D.C.: Professor Sunstein:
On a side note-do you think the new Chief Justice will set a different tone than his mentor or follow more in Justice Rehnquist mold (I am thinking in terms of Stare Decisis and the role precedent held for the late Chief Justice).
There has been much talk about Judge Alito's willingness to overturn previous decisions. However, how far could he go if Chief Justice Robert's takes a more "conventional" role in running the Court? Thank you for your insights.
Cass R. Sunstein: Many thanks. Not sure about Roberts and stare decisis! Note that the Chief Justice is just 1 vote, and so his tone may not prevail, whatever it is.
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Palo Alto, Calif.: Justice Alito is lauded by his supporters as a careful reader of the Constitution. But in his dissent in Casey, he would impose the notice requirement on married women but not on women who have no husband to notify. Is not this segregation of women into two classes, some with full rights (unmarried women) and others with restricted rights (married women), unconstitutional? In particular, wouldn't such a result violate the equal protection clause?
Cass R. Sunstein: As a technical matter, his opinion is ok under the equal protection clause. As I recall, the notifica-tion requirement was limited to married women, which probably doesn't raise an equal protection problem.
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Ann Arbor, Mich.: Why does the fringe right get to choose a Supreme Court Justice? Does the President not have a bigger obligation to the entire nation than just one group and a political game? Isn't this nomination really just another insult to all but the right wing?
Cass R. Sunstein: Not at all sure about this -- let's read more by, and about, Judge Alito before jumping to conclusions? There's too much applauding and booing at too early a stage; mightn't you agree? At least he's an honorable per-son with a lot of relevant experience.
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Washington, D.C.: Hello Professor Sunstein,
What is Judge Alito's attitude toward conflicts between science and religion?
The question is pertinent because much of modern forensic evidence is based on the same kind of science that the proponents of Intelligent Design deny.
Would Alito let his religion trump scientific evidence?
Cass R. Sunstein: Not sure about the science/religion issue -- an important one, to be sure. Judge Alito's own relig-ion, though, seems to me beside the point.
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Charlottesville, Va.: Mr. Sunstein, I often hear conservative commentators and politicians praising judges for not legislating from the bench. Is this primarily a reference to Roe v. Wade, or are there other decisions that prompt these commentators and politicians to seek such a quality in judicial nominees?
Cass R. Sunstein: I don't think this catchphrase -- "no legislating from the bench" -- has any clear meaning. It might be code, meaning: Conservative!
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Arlington, Va.: Would a strict constructionist judge rule that it is constitutional for a state to dictate specifically how I raise my children? How I must feed them, when they should be in bed, what type of discipline is allowed etc.? As far as I know there is no mention of this in the constitution.
Cass R. Sunstein: Good questions!
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