Bloomberg News - Judge Alito Fulfills Presidential Promise About High Court, Conservatives Say

November 1, 2005
by Greg Stohr in Washington

Nov. 1 (Bloomberg) -- George W. Bush, bidding for conservative support in Iowa's 2000 presidential caucuses, suggested Justices Antonin Scalia and Clarence Thomas as role models for the U.S. Supreme Court. With the nomination of Samuel Alito Jr., conservatives say Bush is delivering on that vow.

Alito, 55, would replace retiring Justice Sandra Day O'Connor, likely pushing the court to the right on social issues including abortion, affirmative action, religion and gay rights.

"President Bush has fulfilled what he said he would do, which is nominate conservative justices in the mold of Scalia and Thomas,'' said Jay Sekulow, chief counsel of the conservative Washington-based American Center for Law and Justice.

Unlike Harriet Miers, Bush's previous choice for the seat, Alito offers a clear philosophy of judicial conservatism, honed over 15 years as a judge on the 3rd U.S. Circuit Court of Appeals in Newark, New Jersey. He has voted to restrict abortion, limit civil-rights cases and cut the power of Congress.

In a case sure to get intense scrutiny from the senators who will consider his nomination, Alito voted in 1991 to let states require a married woman to tell her husband before having an abortion. Alito wrote that "a husband has a legitimate interest in the welfare of a fetus he has conceived with his wife.''

Roe v. Wade

The Supreme Court overturned that conclusion a year later, reaffirming the landmark 1973 Roe v. Wade abortion-rights ruling.

"If I had to bet my car, I would say that if he had the opportunity to overrule Roe v. Wade, he would take it,'' said Mary Cheh, a law professor at George Washington University in Washington. "He really looks like he believes the legislature should have the primary role there. That doesn't bode well for a constitutional right.''

Some supporters say Alito may not espouse the "originalist'' school of constitutional interpretation used by Scalia and Thomas, who say the Supreme Court's sole focus should be the intent of the people who framed the Constitution in 1789 and its amendments in later years.

"What he is not is an originalist,'' said Nora Demleitner, a law professor at Hofstra University in Hempstead, New York, who was a law clerk for Alito from 1992 to 1993. "I don't think there is anything that would lead us to believe that he would go back to what the framers thought.''

Hailed by Conservatives

Conservatives nonetheless were united in hailing the selection, offering a sharp contrast to the mixed reaction they gave the Miers nomination a month ago. Unlike Miers, who has never been a judge, Alito has a 15-year judicial record in addition to service in President Ronald Reagan's Justice Department and longtime ties to the Federalist Society, a Washington-based group of conservative and libertarian lawyers.

"The president has ended the corrupting practice of stealth nominations,'' said Manuel Miranda, executive director of the Third Branch Conference, a conservative group in Washington that was one of the first to oppose Miers.

Democrats and liberal advocacy groups criticized the choice. They point to such rulings as a 1996 case in which Alito, alone among 13 judges, would have imposed tougher standards for employees claiming illegal discrimination.

"He's everything the right has wanted, and maybe more,'' said Elliot Mincberg, legal director of People for the American Way, a Washington-based group that opposed Chief Justice John G. Roberts. "He's shown himself to be far to the right of Sandra Day O'Connor.''

Roberts Similarities

Alito may bear similarities to Roberts, appointed by Bush earlier this year, according to Brad Berenson, a former lawyer in Bush's White House counsel's office. Unlike some of the candidates considered by Bush, both Roberts and Alito focus on process, rather than results, Berenson said.

"He's a conservative to be sure, but not of the results- oriented, agenda-driven variety, which is exactly how I would describe John Roberts,'' said Berenson, now a partner at Sidley & Austin in Washington. "In my book, that's just a description of a good judge.''

Another former Bush administration White House lawyer, Christopher Bartolomucci of the Washington law firm Hogan & Hartson, said Alito "has a conservative judicial philosophy and would fall somewhere between Roberts and Scalia.''

Like Roberts, Alito has suggested he might advance a line of cases restricting the power of Congress and bolstering the immunity of states from citizen lawsuits.

Machine Guns

In 1996, Alito voted to throw out a federal ban on possession of machine guns, which was enacted under Congress's power to regulate interstate commerce. In dissenting from a ruling that upheld the ban, Alito wrote that Congress didn't properly show that purely in-state possession of a machine gun would affect interstate commerce, though he said a law could be upheld with such a showing.

Alito wrote the 3rd Circuit's 2000 decision shielding states from being sued by employees who claim violations of the federal Family and Medical Leave Act. Ruling in the case of a Pennsylvania state worker who was fired after taking sick leave, Alito said the Constitution's 11th Amendment makes states immune from such suits.

The Supreme Court in effect overturned that decision in 2003, when Chief Justice William H. Rehnquist wrote in another case that states can be sued under the family-leave law.

Reserved Style

Alito also bears stylistic similarities to Roberts, with opinions that tend to be reserved, focused narrowly on the legal issues in the case, Bartolomucci said. That distinguishes him from Scalia and two other federal appeals court judges considered by Bush for the slot, Edith Jones and Janice Rogers Brown. All are known for aggressive, sometimes biting, opinions.

"He comes across as less fiery than a Scalia does or a Janice Rogers Brown,'' Bartolomucci said.

Ultimately, those stylistic variations won't matter much, some conservatives say. "To try to parse the differences between John Roberts, Scalia and Alito is thin parsing,'' Sekulow said. "They all have a very similar judicial philosophy.''