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Veering sharply from his initial selection, President George W. Bush dipped into the federal appeals court ranks and announced Monday that Judge Samuel Alito Jr. would be his choice to replace retiring Supreme Court Justice Sandra Day O’Connor. It was a dramatic departure from Bush’s previous selection, White House Counsel Harriet Miers, who pointedly had no previous judicial experience and whose nomination was withdrawn on Oct. 27 after 3 1/2 weeks. Bush noted that Alito, who sits on the 3rd U.S. Circuit Court of Appeals, “has served with distinction on that court for 15 years and now has more prior judicial experience than any Supreme Court nominee in more than 70 years.” Reaction among prominent Democrats on the Senate Judiciary Committee, which will eventually hold confirmation hearings on Alito, was swift and condemnatory. “This is a nomination based on weakness, not on strength,” said Massachusetts Democrat Edward Kennedy in a statement, echoing the widely held view that the nomination of Alito is Bush’s way of making amends with his social conservative base, who were deeply disappointed in the Miers nomination and who worked hard to scuttle it. Added New York Democrat Charles Schumer: “It is sad that the president felt he had to pick a nominee likely to divide America, instead of choosing a nominee in the mold of Sandra Day O’Connor, who would unify us.” Bush made the announcement on a Monday morning at 8:01 a.m., precisely four weeks after he made a similar announcement about Miers. Alito was accompanied by his wife, Martha, and his two children, Phil and Laura. In his remarks the 55-year-old jurist, whose father immigrated to the United States from Italy, talked about his experience with the Supreme Court, calling it “an institution that I have long held in reverence.” “I argued my first case before the Supreme Court in 1982, and I still vividly recall that day,” said Alito. “I remember the sense of awe that I felt when I stepped up to the lectern.” Alito graduated from Princeton University and Yale Law School, then clerked for Judge Leonard Garth of the 3rd Circuit, who is now a colleague. He spent three years as an Assistant U.S. Attorney in New Jersey, then, from 1981 to 1985, was an assistant to the U.S. solicitor general, arguing 12 cases before the Supreme Court. From 1985 to 1987 he was a deputy assistant attorney general in the Office of Legal Counsel, then served as U.S. attorney for the District of New Jersey for two years. In 1990 he was confirmed by a voice vote to his seat on the appellate court. But while Alito has extensive juridical credentials, his confirmation would mean the Court would have only one woman, Justice Ruth Bader Ginsburg, among its nine members. It would also mean no Hispanic justice either, a fact that has some Latino leaders up in arms. “This is an indefensible, inexcusable choice,” says Carlos Ortiz, the former president of the Hispanic National Bar Association who has been campaigning for a Hispanic to be named to the Court for more than a decade. “The audacity, the lack of respect for our community is unreal.” Alito has burnished his conservative credentials through hundreds of decisions in his 15 years on the bench. But he is perhaps best known for his dissent in Planned Parenthood v. Casey, the 3rd Circuit case that eventually made its way to the Supreme Court. Alito, who dissented in the 2-1 ruling, voted to uphold a section of the Pennsylvania abortion law that required married women to tell their husbands that they were going to have an abortion. The Supreme Court struck down that section of the law in 1992, saying that spousal notification gave husbands too much power over their wives and would worsen situations of spousal abuse. Edward Hartnett, a professor at Seton Hall University School of Law, says Alito’s dissent was not about abortion per se, but, rather, was a philosophical argument about the best way to apply a law. Since most women seeking an abortion are unmarried, and since the vast majority of married women would have no problem notifying their husband they were having an abortion, the question becomes one of which aspect of the law do you focus on: the broad sweep or the exception — the woman for whom spousal notification would indeed be an undue burden, Hartnett says. “A big piece of what’s going on here is what sort of judicial perspective you apply to a statute,” says Hartnett. “Do you look at it on its face or how it is applied to a particular person? If you focus on the broad sweep of potential people to whom the statute could apply, you can’t see much burden at all.” And that seems to be what Alito was thinking, not just for the Casey case but as a general legal principle. “[I]t appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown,” Alito wrote in his dissent. Alito is known for his affable and humble manner, traits that should help as he begins to make his courtesy calls in the Senate. He is also a good legal writer, according to another Seton Hall law professor, Mark Alexander. “He has always used his considerable legal talents to craft his opinions and craft them thoroughly,” says Alexander. “He can turn the phrase he needs to turn, and conceptualize and articulate things, no doubt.” According to at least one former Alito clerk, Nora Demleitner, he is not the rabid conservative he’s so far been made out to be. Demleitner cites Alito’s majority decision in the 1993 case Fatin v. INS, in which Alito held that an Iranian woman could be granted asylum if she could show that complying with her country’s “gender specific laws and repressive social norms” would be deeply abhorrent to her. “To this day, it remains one of the most progressive opinions in asylum law on gender-based persecution,” says Demleitner. A law professor at Hofstra University who clerked for Alito from 1992 to 1993, Demleitner said she and her former clerks are scratching their heads at the appellation “Scalito,” which news reports say is Alito’s nickname, and which plays into the notion that Alito is a carbon copy of Justice Antonin Scalia. “The only thing we can think of is demographics,” she says. “They’re both Italian Catholics from Trenton. “He’s not an originalist; that’s the most important thing. I don’t see him saying, ‘As the Framers said in 1789,’ the way Scalia writes his opinions,” adds Demleitner, who says she’s a liberal Democrat. “I was listening to one reporter this morning and I thought she was describing Attila the Hun and not Sam Alito.” Still, almost all legal commentators believe Alito would move the Court to the right — in ways that O’Connor did not. His employment law decisions, for example, says Alexander, are “extraordinarily conservative.” Adds Rutgers Law School professor Frank Askin: “You can’t fault his abilities, his competence or his ethical bearing. But if you favor freedom of choice and believe in the separation of church and state, the Court has been moving slowly to break [that] down. Alito will help move it.” Legal Times reporter Emma Schwartz contributed to this story.

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