Dissecting Sam Alito


    To most Americans, Samuel Alito remains as much a “stealth”
    candidate for Supreme Court as he was the day that President Bush named
    him to replace the retiring Sandra Day O’Connor, the justice at the
    center of a deeply divided court.

    But Alito’s work on the
    federal bench for 15 years, and as a Reagan Justice Department official
    before that, read large on the radar screen of the Bush White House and
    its outside advisers.

    Since Bush tapped Alito Oct. 31, outside
    groups and senators across the political spectrum have scrutinized the
    370 opinions he has written on the Philadelphia-based 3rd U.S. Circuit
    Court of Appeals and his earlier work as an assistant U.S. attorney
    general.

    The 600-pageWhite House briefing book on Alito calls him a “mainstream” judge, and conservative groups say they agree.

    As head of two outside groups working to confirm judges for Bush,
    Boston University law school dean emeritus Ronald Cass cites the
    American Bar Association’s highest “well qualified” rating for Alito as
    evidence that his opponents “are the ones who are out of the
    mainstream.”

    Others suggest Alito is far more conservative than supporters paint him:

    _ Cass Sunstein, a University of Chicago professor and author of
    “Radicals in Robes,” says his study of Alito’s 80 appeals court
    dissents finds he’s 91 percent more conservative than other appellate
    judges, including appointees of Ronald Reagan and the Bushes, father
    and son.

    _ Conservative lawyer Bruce Fein, a Reagan Justice
    Department colleague of Alito, calls it “disingenuous” to liken Alito’s
    track record to O’Connor’s on such hot-button issues as abortion,
    affirmative action and church-state separation. Alito’s backers “are
    tying to portray him as something he’s not,” Fein complains.

    That’s why senators will closely question Alito about the following key
    entries in his long paper trail when Senate confirmation hearings start
    Monday. The hearings begin with a new Harris poll showing a third of
    the public supporting confirmation, a third opposing it and a third
    wanting to know more.

    ABORTION: Alito assured Senate
    Judiciary Chairman Arlen Specter, R-Pa., in advance of the hearings
    that his personal views on abortion “would not be a factor” if the
    Senate confirms him to the Supreme Court.

    Before now, Alito
    most clearly outlined his views on Roe v. Wade, the landmark 1973
    Supreme Court ruling that made abortion a nationwide constitutional
    right, in a pair of 1985 memos he wrote as a Reagan Justice Department
    attorney:

    _ In his 1985 application for promotion from Justice
    Department career lawyer to a political post, Alito said he was
    “particularly proud” to contribute to administration court arguments
    that the “Constitution does not protect a right to an abortion.”

    _ The second 1985 memo urged the solicitor general to ask the Supreme
    Court to allow incremental state restrictions on abortion. To Alito,
    this should be part of a long-term strategy “to advance … the
    eventual overruling of Roe v. Wade, and in the meantime, of mitigating
    its effects.”

    Alito’s 3rd Circuit dissent in Planned Parenthood
    v. Casey also got the Supreme Court’s attention in 1992: In that 5-4
    decision, the Supreme Court used the Casey case to reaffirm the core
    holding in Roe v. Wade legalizing abortion and to adopt O’Connor’s test
    that restrictions mustn’t impose an “undue burden” on abortion rights.

    The Casey case upheld some Pennsylvania restrictions but struck down
    the requirement that a woman notify her husband in advance because of
    the danger to victims of spousal abuse. In his 3rd Circuit dissent,
    Alito said spousal notification isn’t an undue burden because it
    doesn’t affect most women.

    EXECUTIVE POWER: President
    Bush’s expansive view of his constitutional powers post-9/11 will be a
    lightning rod for the Senate Judiciary Committee even though Alito
    hasn’t ruled on touchy war-on-terror issues. Two reasons for Senate
    interest:

    _ Alito used a 2000 speech to the Federalist Society
    to advance a far-reaching theory of presidential authority. According
    to him, under the Constitution, “The president has not just some
    executive powers, but has the executive power _ the whole thing.”

    _ O’Connor, the justice Alito would replace, rejected Bush’s claim that
    he has the power to indefinitely detain anyone he designates an enemy
    combatant in a 2004 decision holding that a “state of war is not a
    blank check for the president.”

    Given Bush’s order for
    warrantless domestic surveillance, a 1984 Alito Justice Department memo
    also has taken on added importance. The memo argued that former
    Attorney General John Mitchell should be shielded from suit by the
    target of a 1972 wiretap later judged unconstitutional.

    Alito
    critics suggest the memo could indicate thinking on Bush’s claim that
    he has inherent constitutional authority to eavesdrop on Americans.
    Alito’s memo doesn’t address the legality of wiretapping, however, but
    the circumstances in which a target of illegal surveillance has legal
    recourse against responsible officials.

    Where executive power
    involves police, prosecutors and the like, Sunstein reports that Alito
    tends “with striking regularity” to defer to “established institutions
    … (and his opinions) do not show a flamboyant judge seeking to
    revolutionize the law.”

    A case in point: In Doe v. Groody
    (2004), 3rd Circuit dissenter Alito said a police officer couldn’t be
    sued for strip-searching a 10-year-old girl even though she wasn’t
    named in the warrant. Alito said the officer reasonably believed he had
    permission to search her.

    CONGRESSIONAL POWER: Alito’s
    opinion in United States v. Rybar (1996) should be a Senate sore point:
    He said Congress’ constitutional powers “to regulate Commerce … among
    the several states” doesn’t include regulation of machine guns, a
    departure from every federal appeals court to address the question.

    Congressional authority to regulate guns or anything else has been a
    raging controversy since the Supreme Court decided U.S. v. Lopez in
    1995, a 5-4 ruling invalidating the Gun-Free Schools Act for exceeding
    Congress’ commerce powers.

    Lopez was the first of 34 Supreme
    Court 5-4 rulings since 1995 to strike down acts of Congress on
    commerce-clause or states’-rights grounds. In each, O’Connor was the
    tiebreaker.

    She also was in the 6-3 majority in Nevada v. Hibbs
    (2003), finding that Congress made its case for covering state
    government under the Family and Medical Leave Act. Alito voted to
    overturn that same law as a congressional overreach in Chichester v.
    Pa. Department of Community and Economic Development two years before.

    AFFIRMATIVE ACTION: Here, too, O’Connor’s vote has been key, most
    recently in her 5-4 decision in Grutter v. Bollinger (2003) upholding
    continued use of race as one of many factors in college admissions.

    In his 1985 job-application memo to then-Attorney General Edwin Meese,
    now a top outside adviser to Bush on judgeships, Alito wrote he was
    “particularly proud of my contributions in recent cases in which the
    government has argued in the Supreme Court that racial and ethnic
    quotas should not be allowed.”

    In 1997, Alito and the 3rd
    Circuit upheld a white teacher’s reverse-bias lawsuit against the
    Piscataway, N.J., school board for firing her instead of a black
    teacher with identical qualifications when budget cuts forced layoffs.
    The Supreme Court took the case to refine prior rulings on affirmative
    action in employment, but civil rights groups settled rather than risk
    a potential Supreme Court loss.

    Senators also will question
    Alito about his membership in Concerned Alumni of Princeton, a 1970s
    group that fought the admission of women.

    On the separate issue
    of employment discrimination, critics say Alito’s 3rd Circuit opinions
    in Sheridan v. Du Pont Co. (1996) and Bray v. Marriott Hotels (1997)
    took a tough approach toward letting workers bring job bias complaints.

    VOTING RIGHTS: With O’Connor the court lynchpin on
    political remaps, senators will quiz Alito on voting rights and
    redistricting.

    Alito has little judicial history on this topic
    but, on that same 1985 Justice Department job application, he wrote of
    his “deep interest in constitutional law motivated in large part by
    disagreement with Warren Court decisions, particularly …
    reapportionment.”

    The 1960s Warren court landmark decisions
    central to his disagreement presumably start with Baker v. Carr (1963)
    and subsequent rulings that established the constitutional principle of
    “one person, one vote.”

    Sen. Joe Biden, D-Del., says Alito’s
    redistricting answers may be more important to his judicial promotion
    than abortion, especially when the Supreme Court has agreed to consider
    Texas’ 2003 congressional remap. That redistricting, tied to Texas Rep.
    Tom DeLay’s money-laundering indictment and loss of his House
    Republican leader’s post, gave Republicans five more seats in Congress
    and solidified GOP control.

    CRIMINAL LAW: In 15 years on
    the 3rd Circuit, Alito has sided overwhelmingly with government
    prosecutors and against the accused, according to analyses of his
    voting patterns in criminal cases by The Washington Post and others.

    His dissent refusing to overturn the death sentence of Ronald Rompilla
    has drawn special attention. Rompilla claimed he was represented by
    incompetent counsel who failed to investigate or present any evidence
    that his parents tortured him as a child and that he suffered organic
    brain dysfunction because of fetal alcohol syndrome. The Supreme Court
    voted 5-4 last term to overturn Rompilla’s death sentence, with
    O’Connor as tie-breaker.

    A1984 Justice Department memo by Alito
    also has drawn attention: In it he said he saw no constitutional
    problem with police shooting to kill an unarmed teen seen fleeing the
    site of a $10 Memphis home burglary, calling the shooting “reasonable.”
    The Supreme Court used the case, Tennessee v. Garner (1985), to set a
    bright-line rule nationwide forbidding routine police use of deadly
    force against fleeing suspects who pose no danger.

    CHURCH-STATE: Alito’s appeals court votes on church-state issues follow
    the Supreme Court’s “reindeer test” that allows public displays of
    sacred items so long as they appear alongside their secular
    counterparts.

    In ACLU of New Jersey v. Schundler (1999), Alito
    and the 3rd Circuit upheld a Jersey City, N.J., holiday display against
    an Establishment Clause challenge because it featured a creche and
    menorah along with Santa and Frosty the Snowman.

    But Alito
    dissented in ACLU of New Jersey v. Black Horse Pike Regional Board of
    Education (1995), arguing that prayer at public high school graduations
    doesn’t violate the Establishment Clause if students vote to have a
    prayer and offer it themselves. The Supreme Court subsequently struck
    down such prayers at public-school graduation and football games for
    unconstitutionally compelling students against conscience.

    Separately, Alito voted in Fraternal Order of Police v. Newark (1999)
    that the Newark police department’s refusal to let Muslim officers wear
    beards for religious reasons violates the Free Exercise clause of the
    First Amendment to the Constitution.

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