October 31, 2005


Bush Selects Alito for Supreme Court (Fred Barbash and Peter Baker, October 31, 2005 , Washington Post)

President Bush today will name appeals court Judge Samuel A. Alito to the U.S. Supreme Court, according to a source close to the White House. Alito, 55, serves on the Philadelphia-based U.S. Court of Appeals for the Third Circuit, where his record on abortion rights and church-state issues has been widely applauded by conservatives and criticized by liberals.[...]

While he has been dubbed "Scalito" by some lawyers for a supposed affinity to conservative Justice Antonin Scalia and his Italian-American heritage, most observers believe that greatly oversimplifies his record.

Alito is considered far less provocative a figure than Scalia both in personality and judicial temperament. His opinions and dissents tend to be dryly analytical rather than slashing.

In addition, his appeals court record is not uniformly conservative on the sorts of issues that arise in Supreme Court confirmation battles.

In 2004, he ruled in favor of a complaint brought under the Individuals with Disabilities Education Act by a boy badly bullied by his classmates who was seeking legal relief but had been rebuffed by a U.S. District Court.

He also authored a majority opinion granting federal court review to an African American who could not get state courts to hear his claim of racial bias on the part of a juror in his trial. The case involved a juror who used racial epithets outside the confines of the jury room.

His record on the appeals court makes Alito less liable to suggestions made about Roberts, with only two years as a judge, that he is somehow a judicial mystery.

Rather, liberals are likely to focus on his opinions and dissents, most notably in the 1991 case, Planned Parenthood v. Casey.

In that case, Alito joined joined a Third Circuit panel in upholding most of a Pennsylvania law imposing numerous restrictions on women seeking abortions. The law, among other things, required physicians to advise women of the potential medical dangers of abortion and tell them of the alternatives available. It also imposed a 24 hour waiting period for abortions and barred minors from obtaining abortions without parental consent.

The panel, in that same ruling, struck down a single provision in the law requiring women to notify their husband's before they obtained an abortion. Alito dissented from that part of the decision.

"The Pennsylvania legislature," Alito wrote, "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 constrains, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to abortion."

The case ultimately reached he Supreme Court, which upheld the appeals court decision, disagreed with Alito and also used the case to reaffirm its support for Roe v. Wade, the 1973 decision legalizing abortion.

Unclean! Unclean!

Parties Set Stage for Showdown on Court Choice (DAVID D. KIRKPATRICK, 10/31/05, NY Times)

With the announcement of a new Supreme Court nominee expected as early as Monday, Senator Harry Reid of Nevada, the Democratic leader, warned President Bush on Sunday not to pick one of the candidates said to be on the president's short list, Judge Samuel A. Alito Jr.

"I think it would create a lot of problems," Mr. Reid said on "Late Edition" on CNN.

Rather than selecting a nominee for the good of the nation and the court, President Bush has picked a nominee whom he hopes will stop the massive hemorrhaging of support on his right wing. This is a nomination based on weakness, not on strength.

After insisting that Harriet Miers shouldn't even get a hearing because she couldn't prove she was extreme enough, the far right has now forced the President to choose a nominee that they think has views as extreme as their own.

There are many serious questions about whether Judge Alito is a mainstream nominee fit to fill the seat of Justice O'Connor.

Ted's just tryinmg to repay the many kindnesses W has shown him by getting the Scalito pick in good with the Right.
Catholics move to the center of the bench (TIM UNSWORTH, January 24, 2003, National Catholic Reporter)
[T]here may be four, maybe five Catholics on the court by next spring -- an extraordinary shift. The new justice -- or two -- would join Scalia, Anthony Kennedy and Clarence Thomas.

Samuel Alito's conservative views earned him nickname 'Scalito' (DONNA CASSATA, 10/31/05, Associated Press
Samuel A. Alito has been a strong conservative jurist on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, a court with a reputation for being among the nation's most liberal.

Dubbed "Scalito" or "Scalia-lite," a play not only on his name but his opinions, Alito, 55, brings a hefty legal resume that belies his age.

The Front-Runners on Roe: What Bush's shortlist thinks about abortion. (Emily Bazelon, July 5, 2005, Slate)
The hard-liners:

John Roberts

In 1991, as deputy solicitor general for President George H.W. Bush, John Roberts (now a judge on the U.S. Court of Appeals for the D.C. Circuit) co-wrote the administration's brief in Rust v. Sullivan. Roberts' position, which was adopted by the Supreme Court, barred doctors and clinics receiving federal funds from discussing the possibility of abortion with their patients or referring them to family-planning clinics that do the procedure. The brief said on behalf of the administration, "We continue to believe that Roe was wrongly decided and should be overruled." Roberts could try to distance himself from this stance by arguing that he was merely stating his client's position, but the stark language in the brief could be hard to disown.

Michael McConnell

In 1996, when he was a law professor, Michael McConnell (now a judge on the U.S. Court of Appeals for the 10th Circuit) signed a statement supporting a constitutional amendment to ban abortion. "Abortion kills 1.5 million innocent human beings in America every year," the statement read. "We believe that the abortion license is a critical factor in America's virtue deficit."

Emilio Garza

In 1992 and 1997, Judge Emilio Garza (U.S. Court of Appeals for the 5th Circuit) struck down two Louisiana statutes for restricting abortion more tightly than Roe and Casey allow. But in each case, Garza wrote a concurrence stating his disagreement with those Supreme Court decisions. "I would allow the people of the State of Louisiana to decide this issue for themselves," he wrote in the 1992 case. In 1997, he called Roe and Casey "inimical to the Constitution."

Edith Jones

In 2004, Judge Edith Jones (U.S. Court of Appeals for the 5th Circuit) agreed with a decision to reject a suit brought by Norma McCorvey, the original plaintiff in Roe, to reverse the Supreme Court's 1973 decision. (McCorvey had undergone a change of heart in the meantime and become a pro-life activist.) In a concurrence, Jones agreed that the 5th Circuit had no choice but to dismiss McCorvey's suit as moot. But that result was "ironic," Jones said, given evidence McCorvey presented about the "long-term emotional damage" suffered by women who have abortions and about the early stages at which "a baby develops sensitivity to external stimuli and to pain." Jones concluded, "[T]he perverse result of the Court's having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter."

The regulators:

Samuel Alito

In 1991, Judge Samuel Alito (U.S. Court of Appeals for the 3rd Circuit) dissented from the lower-court decision—affirmed by the Supreme Court in Casey—that struck down a Pennsylvania law that would have required women to inform their husbands before getting abortions. Alito read the Supreme Court's earlier decisions as holding that an abortion regulation did not pose an undue burden unless it banned abortion, gave another person a veto over a woman's choice, or had the "practical effect of imposing severe limitations." A law that had a "heavy impact on a few women" should be upheld, Alito said.

Michael Luttig

In 1998, Michael Luttig (U.S. Court of Appeals for the 4th Circuit) granted a stay that had the effect of allowing a Virginia ban against partial-birth abortion to go into effect. After the Supreme Court struck down Nebraska's parallel law in Stenberg v. Carhart, Luttig reversed his earlier decision and lifted the stay, which had the effect of throwing out the Virginia restrictions. At that point, he explained that at the time of his initial decision to let the Virginia ban stand, he understood Casey to be "a decision of super-stare decisis"—meaning super respect for precedent—"with respect to a woman's fundamental right to choose." But he also believed that the court would uphold the partial-birth abortion bans, or at least defer to Virginia's interpretation limiting the reach of its statute.

Not even a hard-liner?
The Supreme Court Shortlist: The views of the likely candidates. (Emily Bazelon and David Newman, July 1, 2005, Slate)
Samuel Alito

Age: 55
Graduated from: Yale Law School.
He clerked for: Judge Leonard Garth.
He used to be: deputy assistant attorney general under Reagan, U.S. Attorney for the District of New Jersey.
He's now: a judge on the U.S. Court of Appeals for the 3rd Circuit (appointed 1990).

His confirmation battle: Alito has the Scalia-esque nickname "Little Nino" and the Italian background to match it. As the author of a widely noted dissent urging his court to uphold restrictions on abortion that the Supreme Court then struck down, in a decision that reaffirmed Roe v. Wade, Alito could be especially filibuster-prone. Like Scalia, he frequently makes his mark in dissent.

Separation of Church and State
For a unanimous panel, upheld a lower-court order requiring a school district to allow a Bible-study group to set up an information table at an elementary-school back-to-school night. Reasoned that by preventing the group from displaying its literature, the district was discriminating on the basis of viewpoint. (Child Evangelism Fellowship of N.J., Inc. v. Stafford Township School District, 2004)

For a unanimous panel, denied standing to a group seeking to take down a municipal holiday display that included a menorah and a crèche. Alito said that the group couldn't challenge the display as taxpayers because the items were donated rather than bought by the town. (ACLU-NJ v. Township of Wall, 2001)

Dissented from a ruling by the 3rd Circuit as a whole that an elementary school did not violate the First Amendment rights of a kindergartener by taking down (and then putting back up) a Thanksgiving poster he'd made that said the thing he was most thankful for was Jesus. The majority decided to throw out the case on a technicality; Alito protested that the child's claim should go forward. (C.H. v. Oliva, 2000)

Criminal Law
Allowed a federal probation office in Delaware to condition the release of a man who had pleaded guilty to receiving child pornography on his willingness to submit to random polygraph tests about whether he'd had impermissible contact with children. (United States v. Warren, 2003)

Dissented from a refusal to grant police officers immunity from a civil suit brought by a mother and her 10-year-old daughter who'd each been strip-searched because they lived in the home of a suspected drug dealer. Alito felt the police had behaved reasonably because the warrant led them to conclude that there was probable cause to search everyone in the house for drugs. (Doe v. Groody, 2004)

Habeas Corpus
Granted the habeas claim of an African-American defendant who sought to introduce evidence that a juror made a racist remark after the jury reached its verdict. (Williams v. Price, 2003)

Dissented from a decision holding that Pennsylvania could not require women to inform their husbands before getting abortions. Alito argued that because the law only required the husbands to have notice and did not give them a veto over their wives' decisions, it did not pose an "undue burden" for women. This approach was rejected by the Supreme Court. (Planned Parenthood v. Casey, 1991)

Agreed that an immigration judge was within his discretion to find not credible an application for asylum based on China's forced-abortion policy. (Xue-Jie Chen v. Ashcroft, 2004)

One can't help noticing that his most noted opinions are either dissents or for unanimous majorities, suggesting some considerable degree of lightweightedness. Heavyweights write the narrowly divided majority opinions.

Posted by Orrin Judd at October 31, 2005 7:24 AM

Poor oj, still fighting the last battle.

Fact is, you couldn't have asked for a better opinion in Casey, and you know the man will write the same opinion again next time he gets a chance. Isn't that what it's all about?

Posted by: curt at October 31, 2005 8:10 AM

If true, Jeff wins the contest. He picked Alito a little past noon on October 27th.

Posted by: Melissa at October 31, 2005 8:16 AM


How do you know? He's supposedly a very decent and reserved man and more than likely to tend to moderate as he spends time on the Court in its collegial atmosphere and has to read attacks against his opinions in the MSM. The Court is a creature of the Beltway.

Posted by: oj at October 31, 2005 8:18 AM


Which Jeff?

Posted by: oj at October 31, 2005 8:22 AM

oj --

He is a 55 year old guy who has been been dealing with these issues for decades and reaching consistent conclusions. Somehow, I don't see him being influenced by Ginsberg and Souter to flip and move away from Scalia, Thomas and Roberts.

If you're going to worry about this possibility, you should have been scared to death of Meirs.

Posted by: curt at October 31, 2005 8:47 AM

That would be me.

Posted by: Jeff at October 31, 2005 9:02 AM


Send me your address and what sorts of books you like.

Posted by: oj at October 31, 2005 9:07 AM


"narrowly divided majority opinions."

There is no such thing on appelate panels that have 3 judges. It's either 2-1 or 3-0.

Posted by: Robert Schwartz at October 31, 2005 10:27 AM

See Robert Schwartz's comment. Not sure you have a handle on this whole judicial issue, oj.

Posted by: oj at October 31, 2005 11:00 AM


Yes, they don't give him the 2-1's. He appears to be a pick in the Miers mold, a consensus-builder who won't be given the tough opinions but will vote with the Right on those.

Posted by: oj at October 31, 2005 11:08 AM

OJ commenting on OJ? Ye gods - schizophrenia's afoot! Or perhaps it is just the 'liberal' side coming out more forcefully.

Posted by: ratbert at October 31, 2005 11:26 AM

Given that he's from Philly, and Italian to boot, the only questions I have regard cheesesteaks. Is he a Pat's or a Jim's man? Whiz or real cheese? Onions or no?

If he doesn't like his steak "Whiz with", from Jim's, then he's not to be trusted. Unclean indeed.

Posted by: Jim in Chicago at October 31, 2005 11:28 AM

OJ, there is (at least on the 6th circuit, where I clerked) a "presumptive writing judge" on each 3-judge panel for each case when it is first assigned to the panel. If that judge ends up in the majority, he or she writes the majority opinion. There is no negotiation among the two judges in the majority about who is going to write the opinion. The 3d ciruit is likely the same. The presumptive writing judge designation permits the opinion to be almost entirely complete (in bench memo form) prior to oral argument, which was true 90% of the time for us.

Posted by: rds at October 31, 2005 11:35 AM

I wonder how the new Justice likes being called Scalito and if it will cause him to show that hes his own man by disagreeing with Scalia?

Certainly the media will pound him on it. He better have very thick as well as dark* skin.

*I heard on the radio this morning that the media is wondering why Alito's kids are light skinned blond(e)s when he has dark skin and black hair? Here's an exaplanaton. My light skinned, dark haired half Italian kid has four kids, 1 dark hair, 2 light brown, 1 tow head -- explanation his wife is part Irish/English/German.

Posted by: erp [TypeKey Profile Page] at October 31, 2005 12:18 PM


Yes, but when he writes he never persuades a second.

Posted by: oj at October 31, 2005 12:46 PM

"Yes, but when he writes he never persuades a second."

And you base this sweeping conclusion on? ...8 cases selected and summaried by someone writing for Slate! Did it ever occur to you that he persuaded both a second and a third. Or that the other 2 panel members were unreconstructed socialists? Or that he deferred to the opinion writer as a good politician will do from time to time. Or...

oj, you ceased a long time ago to make any sense on this topic. You loved Meirs because she was religious and as a consequence you hoped she would do the right thing on abortion. Alito is religious and has demonstrated he will do the right thing. So what is the problem, other than that Kristol was right about Meirs?

Posted by: curt at October 31, 2005 1:37 PM


Yes, on the evidence. I think Alito is a great pick precisely because he's a Miersesque featherweight headed to a Court that already has two intellectual prima donnas too many. Only the votes matter, not the opinions.

Posted by: oj at October 31, 2005 1:40 PM

"Only the votes count, not the opinions." Ugh. I think you've agreed in the past with the notion that "ideas have consequences." Well, that goes for the legal world, too.

Posted by: rds at October 31, 2005 2:05 PM

"Only the votes count, not the opinions." Ugh. You've agreed in the past with the general notion that ideas have consequences. Well, that goes for the legal world, too -- in spades.

Posted by: rds at October 31, 2005 2:06 PM

Mr. Judd,

Two prima donnas? I can think of Scalia, but who's the other? Roberts? Thomas? or one of the liberal members?

Oh wait... Souter?

Posted by: mc at October 31, 2005 2:06 PM

Mr. Judd,

Two prima donnas? I can think of Scalia, but who's the other? Roberts? Thomas? or one of the liberal members?

Posted by: mc at October 31, 2005 2:06 PM

My last two posts are actually a clever little game: they look the same on first glance, but can you tell the differences?

Posted by: rds at October 31, 2005 2:07 PM

And if you were to respond that all the ideas at issue are present in the Constitution already, it needs to be pointed out that it requires a lot of ideological argument to convince others to take that approach to the text.

Posted by: rds at October 31, 2005 2:12 PM

Someone needs to tell Sen. Schumer that this guy is an unpersuasive featherweight, because Chuck's on TV bug-eyed and foaming at the mouth right now.

Posted by: curt at October 31, 2005 2:19 PM

Like 'em or not, Scalia's opinions are the only ones that make interesting reading for non-lawyers. I can't think of any other Supreme who writes opinions I'd want to wade through.

Does that make them "featherweights"? No, it just makes them boring writers. They may actually be smarter than Scalia when it comes to thinking through a case.

It's not surprising that a blogger like Orrin, who has to write non-boring stuff to keep his readers coming back, would think all the robed ones except Scalia are pretty dumb. He wants entertainment from the Supremes' opinions, and Scalia is the only one who provides it.

Look out for Roberts, though. He slipped a few zingers into his memos and decisions.

Posted by: Csey Abell at October 31, 2005 2:21 PM

Good choice. From Specter's initial comments it looks as though the RINOs will be backing the choice.

Posted by: Ray Clutts at October 31, 2005 2:41 PM


All that matters is 5 votes.

Posted by: oj at October 31, 2005 3:45 PM


You can maybe afford a Scalia or a Thomas -- guys who feel compelled to argue their own peculiar legal theory even if it means they can't join the majority -- but you can't afford both. The most important skill a Justice can have is the discipline to write : "Concur"

Posted by: oj at October 31, 2005 3:47 PM


One contains a racial slur?

Posted by: oj at October 31, 2005 3:48 PM

Thomas doesn't ever ask questions - that makes him prima enough. But his sign about checking penumbras at the door is reason alone for him to be on the Court.

Posted by: ratbert at October 31, 2005 4:20 PM

OJ is correct about "it only takes five votes". Prime example is Roe v Wade. No reasoning that was perceptable, but it has lasted 35 years (also helped Republicans immensely during that time).

Posted by: h-man at October 31, 2005 4:42 PM

[T]here may be four, maybe five Catholics on the court by next spring -- an extraordinary shift.

All your SCOTUS belong to us.

Posted by: Matt Murphy at October 31, 2005 6:51 PM