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Group Dynamics: ALITO AND HIS COLLEAGUES (Marisa Katz, 11.01.05, New Republic)

With the nomination of Samuel Alito to the Supreme Court, President Bush seems to have granted conservatives their three wishes. Elites are pleased that Alito is a serious thinker who has proven his commitment to the tenets of strict constructionism. A "perfect pick," declared David Frum. The religious right is heartened that he's a sure bet to tip the Court on abortion rights. "All agog about Alito," ran the headline on the Christian Coalition website. And conservatives of all stripes seem elated to note that the Democrats are seething. "Perhaps the most encouraging early indication that Judge Alito will make a great justice is that liberal senators such as Harry Reid and Charles Schumer and leftist pressure groups ... have been lining up all day to scream that the sky is falling," crowed Focus on the Family's James Dobson.

But what struck me most while reading the liberal People For the American Way's (PFAW) 24-page "preliminary review" of Alito's record, more than his conservative credentials or his anachronistic views about a man's control over his wife, was how ineffective a judge Alito has been. Ineffective in the sense that his legal interpretations often fail to predominate. Ineffective in that he doesn't seem all that capable of convincing his colleagues of the merits of his reasoning. In more than 40 percent of the Third Circuit cases cited by PFAW, Alito wasn't part of the majority. In eleven cases he dissented. In five he concurred (reached the same result as the other justices, but through different reasoning). And when Alito did write the majority opinion, the cases often included strongly worded dissents. Of course, you have to look at all 15 years worth of Alito opinions to get a full picture. And Court watchers will no doubt do that over the coming days. But seen as a slice of Alito's judicial career, the PFAW list is at least noteworthy--especially when compared to John Roberts's record on the D.C. Circuit, where he dissented or concurred a mere 10 percent of the time.

What might this mean as far as how Alito would affect the Supreme Court? I've argued before that a radical conservative justice content to go it alone won't shift the Court to the right as much as a moderate conservative justice with persuasive powers. A prime example is Justice Rehnquist, who was initially famous for solo dissents, but had much greater impact after he learned to employ a bit of strategy. Justice Scalia approaches Court decisions much like the novice Rehnquist did. And, in that sense, we might expect Alito to be like Scalia, while Roberts will be like the more seasoned Rehnquist--a team player.

Ms Miers biggest advantage over Mr. Alito is that without some idiosyncratic legal philosophy of her own to defend she'd have had sense enough to just concur.

Posted by Orrin Judd at November 1, 2005 9:32 AM