Bush Caves To The Right Wing

In picking Judge Samuel Alito Jr. for the Supreme Court, President Bush has joined the confirmation battle by choosing a jurist sufficiently in the mold of conservative icon Justice Antonin Scalia that Alito quickly earned the nickname “Scalito.”

“Little Scalia,” in translation, doesn’t follow the firebrand ways of Scalia, known for his tough questions of lawyers at oral arguments and for his sharply worded opinions, especially dissents. Rather, Alito is considered an even-tempered judge whose opinions are scholarly and polite if lacking in passion.

But in 15 years on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, the 55-year-old Alito has built a reputation as an “originalist” like Scalia. Both pledge to follow the intent of the framers of a law or the Constitution, says Douglas Kmiec, a Pepperdine University expert on the Constitution who worked with Alito in the Reagan and first Bush Justice departments before the elder Bush put Alito on the appeals court in 1990.

On the 3rd Circuit, Alito’s most noteworthy decision is his solo 1991 dissent in Planned Parenthood v. Casey, in which he called for upholding a Pennsylvania law that required women seeking abortions to notify their husbands first.

Spousal notice was justified, Alito wrote, because “the Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems _ such as economic constraints, future plans or the husbands’ previously announced opposition _ that may be obviated by discussion prior to the abortion.”

The Supreme Court overturned that provision the following year, with the tie-breaking vote provided by Justice Sandra Day O’Connor, the justice in the midst of the sharply divided Supreme Court on abortion, affirmative action, church-state issues and capital punishment. O’Connor and her fellow justices used Planned Parenthood v. Casey to uphold the high court’s landmark 1973 decision in Roe v. Wade legalizing abortion nationwide and to announce that government abortion restrictions cannot place an “undue” burden on a woman.

More recently, Alito joined the 3rd Circuit majority in a 2000 opinion that struck down New Jersey’s ban on late-term abortions as unconstitutional. Alito cited a 5-4 Supreme Court decision that O’Connor authored earlier that year requiring that these laws provide an exception for the health as well as the life of the woman. The New Jersey statute failed to provide such an exception.

Alito dissented in a 2000 appeals court decision that found a public school didn’t violate a kindergartner’s First Amendment right to exercise his religion by taking down the Thanksgiving poster he made saying the thing he was most thankful for is Jesus.

Alito also wrote a 1999 opinion in which the 3rd Circuit found that a municipal holiday display featuring a creche and menorah didn’t violate the First Amendment clause prohibiting “an establishment of religion” because the display included Frosty the Snowman and other secular symbols.

O’Connor developed the so-called “reindeer test” the Supreme Court has used since 1984, allowing religious displays on government property so long as they are not exclusively religious.

Other key Alito rulings have let an Iranian woman seek asylum by showing she faced “gender-specific laws and repressive social norms” at home and that struck down a school district’s anti-harassment policy for violating free-speech rights because the non-vulgar comments posed no realistic threat of disrupting schoolwork.

A key area in which Alito has no track record is deference to the executive branch in conducting the war on terror, a top issue today as President Bush claims the power to try foreign suspects before military tribunals and to indefinitely detain citizens he designates “enemy combatants.”

Two terms ago, O’Connor wrote the high court’s key war-on-terror decision deferring to military judgments by the executive branch but holding that a “state of war is not a blank check for the president.”

Alito is Bush’s third choice for the centrist chair held for 24 years by O’Connor, the first woman ever named to the high court.

His first choice, John Roberts, was approved for chief justice instead on the death of William Rehnquist, and Bush withdrew his nomination Thursday of White House counsel and personal lawyer Harriet Miers under pressure from social conservatives who questioned if she would be sufficiently opposed to abortion and affirmative action and supportive of closer church-state relations.

Bush praised Alito for having “more prior judicial experience than any Supreme Court nominee in more than 70 years,” an unspoken if stark contrast to Miers.

The prospect of an Alito nomination caused Senate Democratic leader Harry Reid of Nevada to put the president on notice Sunday that “the Senate needs to find out if the man replacing Miers is too radical for the American people.”

Ralph Neas, head of the liberal organization People for the American Way, pledged a national effort to defeat Alito on the grounds that Bush caved under the right’s “ideological litmus test.”

Nan Aron, president of Alliance for Justice, announced her opposition, warning that “Judge Alito would fundamentally change the balance of the Supreme Court, tipping it in a direction that could jeopardize our most cherished rights and freedoms.”

But conservatives instantly hailed the choice, with Jan LaRue of Concerned Women for America, a conservative think tank that opposed Miers, noting that Alito “has always been one of our top choices for the Supreme Court.”

The Rev. Rob Shenck of the National Clergy Council praised his “proven track record of respect for the original intent of the framers of the Constitution when it comes to the sanctity of life, the sanctity of marriage and public acknowledgement of God.” The Rev. Patrick Mahoney of the Christian Defense Coalition unveiled a campaign of fasting and prayer in support of Alito.

Ed Whelan, a former Scalia law clerk who heads the Ethics and Public Policy Center that criticized Miers, said Bush’s choice of Alito “deserves widespread acclaim. By any objective criteria, it is doubtful that there is anyone now or in recent decades _ yes, not even Chief Justice Roberts _ whose experience and qualifications better prepare him for the Supreme Court.”

Alito was born April 1, 1950, in Trenton, N.J., to Samuel Alito Sr. and the former Rose Fradusco. A second-generation Italian-American, he graduated from Princeton and Yale Law School, where he was editor of the law review, before serving as a law clerk for Judge Leonard Garth, now a colleague on the 3rd Circuit appeals court.

He rose to the rank of captain in the Army Reserves and worked as an assistant U.S. attorney before joining the Reagan Justice Department as an assistant solicitor general. In that role, he argued 12 cases for the federal government before the Supreme Court before becoming deputy attorney general in the policy-setting Office of Legal Counsel under then-Attorney General Edwin Meese.

From 1987 to 1990, Alito was U.S. attorney for New Jersey, where he had charge of prosecuting organized and white-collar crime as well as violations of federal environmental law.

Alito met his wife of 20 years, the former Martha-Ann Bomgardner, when she was a law librarian. They have two children, Philip Samuel and Laura Claire.

The Bush White House drew fire for private assurances to James Dobson and other movement conservatives that Miers, a former Catholic turned born-again evangelical Christian, would side with them on the Supreme Court.

Alito is a Catholic and, if confirmed, would become the fifth Catholic on the current court, a new record. The others are Roberts, Scalia, Anthony Kennedy and Clarence Thomas.

(Contact Mary Deibel at DeibelM(at)shns.com)