Right On
Conservatives got what they wanted in Samuel Alito. He's no Harriet Miers--and no Sandra Day O'Connor either
Supreme Court nominee Samuel Alito is a Philadelphia Phillies fan with an Ivy League pedigree; a straight-arrow husband and father lauded by friends and colleagues from both sides of the political aisle for his resolute character and first-rate intelligence. But more important--for now, anyway--he's a jurist with a deep, wide, and undeniably conservative legacy from 15 years on the federal bench.
Put another way, Alito is no Harriet Miers. And that alone has thrilled conservatives, who torpedoed President Bush's nomination of his White House lawyer and longtime friend.
Bush's quick, bounce back selection of Alito, a 55-year-old federal appeals-court judge and darling of the right, to replace Sandra Day O'Connor is being hailed by conservatives as a critical turning point in their decades-long effort to reshape America's foremost judicial body. Alito, they say, is a jurist in the mold of Chief Justice John G. Roberts, but with a proven judicial record. Should Alito be confirmed--and the betting is that he will be--the nation's highest court would move perceptibly to the right.
As Republicans giddily orchestrated a full-court press in anticipation of Alito's Senate confirmation hearings on January 9, liberals combed through the nominee's court opinions and dissents, as well as records from his seven years as a Reagan administration lawyer. What emerges, they say, is a portrait of a "conservative conservative" --someone who would not only seek to impose limits on abortion but also restrict hard-won civil rights. "No one is questioning his competence. No one is questioning his affability," said Nancy Zirkin of the Leadership Conference on Civil Rights. "What we are seriously looking at is his judicial philosophy, which places him as a conservative activist."
There is little question that Alito would align more frequently with the court's most conservative justices, Antonin Scalia and Clarence Thomas, than has O'Connor, a Reagan appointee who is a moderate swing vote on cultural and personal-rights issues. In opinions and dissents from his many years on the Third Circuit, Alito has favored restrictions on abortions, sought to constrict the rights of plaintiffs to sue states for violations of federal laws, and acted friendly toward lowering the wall between church and state. He often cast a more skeptical eye than his liberal appeals-court colleagues on claims of racial and gender discrimination and habeas corpus petitions from death row inmates.
However, those who have worked with him--from fellow judges to law clerks--say that Alito, while conservative, is no ideologue. They describe the New Jersey native and Yale Law School graduate as fair and faithful to the law and as someone who hired both liberals and conservatives as clerks. "He doesn't bring personal political views to work," says Jay Jorgensen, a former clerk.
Though his writings--particularly dissents from the majority on the Third Circuit court, on which he has sat for the past 15 years--show a right-of-center judge who sets the bar high in cases of alleged discrimination or federal impingement on states' rights, Democrats may find themselves hard pressed to categorize Alito's record as extreme, even on abortion.
The case most frequently cited as a window into Alito's view on abortion is Planned Parenthood v. Casey, which challenged Pennsylvania laws that limited access to abortion, including requiring women to notify their husbands before seeking an abortion. The Third Circuit rejected the spousal notification requirement, and Alito objected. In his dissent, he attempted to anticipate whether the Supreme Court would view such a rule as an "undue burden" and concluded that it would not. The high court disagreed. In an opinion seen as affirming Roe v. Wade, Alito's reasoning was rebuked by none other than O'Connor.
But on other abortion-related cases, Alito, who if confirmed would become the fifth Roman Catholic on the high court, has deferred to Supreme Court precedent, including a 2000 challenge to New Jersey's ban on late-term abortions. He joined his colleagues in striking down the New Jersey law, arguing that it failed to contain a health-of-the-mother exception as required by the high-court precedent. In other cases, Alito ruled that parents could not sue for wrongful death of a fetus because the Constitution does not protect the unborn, and he joined his colleagues in striking down as too restrictive a Pennsylvania law requiring victims of rape or incest to report the crime before seeking Medicaid funds for an abortion.
After a private meeting last week with Alito, Sen. Dick Durbin, a Democratic member of the Judiciary Committee, said the nominee acknowledged a constitutional right to privacy, the underlying basis for Roe. So Democrats are trying to move the debate beyond abortion and have pledged to question Alito carefully on his views regarding civil rights and federalism. Still, committee Chairman Arlen Specter, a Pennsylvania Republican who favors abortion rights, is expected to lead off the hearings with the privacy question, just as he did with Roberts. "I will be interested in Judge Alito's views on following precedent," Specter said, "though I'm not going to ask him how he's going to rule on any case."
With Senate Republicans showing a united front and the "Gang of 14" group of moderate Democrats and Republicans showing no stomach--yet--for blocking this nominee, Alito's chances for a spot on the court look good. Given the stakes, a healthy dose of fiery rhetoric is to be expected, and the cerebral Alito is in for some roughing up at his hearings, particularly since he would be replacing a moderate justice. But barring any stunning revelation, he is likely to take his seat on the court early next year--and a very different court it will be.
This story appears in the November 14, 2005 print edition of U.S. News & World Report.