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President Bush’s nomination of Judge Samuel A. Alito Jr. to serve on the U.S. Supreme Court has created consternation on the political left. By any fair standard, however, the president deserves credit for making a brilliant choice. Alito is among the nation’s most distinguished, fair-minded and temperate jurists. He should be confirmed in short order. In terms of credentials alone, Alito easily qualifies as a “best and brightest” choice. Like Chief Justice John Roberts, he served with great distinction in the Department of Justice, arguing 12 cases in the Supreme Court and advising the president and the attorney general while in the Office of Legal Counsel. And like Roberts, he has both an intimate understanding of how the court functions and a long history of dealing with complex constitutional questions. Even more important is Alito’s service as U.S. attorney for the District of New Jersey. Cases involving criminal law make up a majority of the court’s docket. Remarkably, however, not one of the sitting justices is a former federal prosecutor like Alito. Given his experience, Alito will greatly enhance the diversity of perspectives represented on the court. Critics, however, say Alito’s record as a judge is the cause for concern. Citing a handful of his rulings from the past 15 years, they claim that Alito is outside the judicial “mainstream” and got the nod because he passed the conservative “litmus tests” that Harriet E. Miers failed. Some have even dubbed him “Scalito”- suggesting that he is a mere clone of Justice Antonin Scalia, a Reagan appointee. A principled jurist A fair examination of Alito’s record as a judge, however, confirms that his efforts to adhere to the rule of law do not predictably lead to “conservative” results-let alone results that Scalia would necessarily approve of. Consider Fraternal Order of Police v. Newark, a religious freedom case in which two Sunni Muslim police officers sought relief from a city policy that required them to shave their beards. The officers argued that their faith obligated them to wear beards and noted that the city granted medical exemptions. The city, however, argued that the policy was necessary for maintaining “morale,” safety and a “monolithic force.” Conservatives generally hold that the First Amendment’s protections for religious liberty do not permit judges to craft exemptions from duly enacted laws. The notion is that such exemptions should come from policymakers, not judges, and Scalia has been the champion of this view. Thus, if Alito had been attempting to take a Scalia-esque approach to the Muslim officers’ case, it is far from clear that they would have won. But they did. Alito ruled that the city failed to justify its “value judgment” that medical motivations for wearing a beard were more important than religious motivations for doing so. The case was a victory for religious minorities and, as Alito put it, for “the religious diversity that the First Amendment safeguards.” But it was not a “conservative” result. This case and many others demonstrate that even if Alito were evaluated solely on whether he consistently votes for “conservative” outcomes, the left would have no basis for opposing his nomination. He has reversed criminal convictions, sided with disabled claimants seeking federal benefits, protected the rights of Native Americans and ruled for women seeking asylum based on fear of gender-based persecution. More basically, judges are charged to interpret the law, not make it, which means that they must sometimes issue rulings that are inconsistent with their own preferred outcomes. Thus, if being “conservative” means being committed to the rule of law and its consistent application-regardless of result-Alito is definitely a judicial conservative. But he is far from an ideologue, and his rulings defy classification as “conservative” or “liberal,” politically speaking. A final quality that Alito will bring to the court is a gracious judicial temperament. Those who have worked with and appeared before him describe him as respectful, humble and quick to listen. Indeed, his advisor at Princeton University, left-leaning constitutional historian Walter Murphy, saw these qualities some 35 years ago, predicting that Alito would become a famous judge. The Supreme Court is a unique institution. With only nine members to decide the most difficult issues of law, it deserves the best and brightest in the field. The president has delivered such a nominee. The Senate should confirm him. Gene C. Schaerr and Steffen N. Johnson are partners in the appellate practice group at Winston & Strawn in Washington. Schaerr served as a Supreme Court law clerk and as associate counsel to President George H.W. Bush. Johnson served in the U.S. Department of Justice’s Office of Legal Counsel in the current Bush administration.

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