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Many in the Philadelphia legal community were cautious in estimating just how “confirmable” 3rd U.S. Circuit Court of Appeals Judge Samuel A. Alito, Jr. may be. Most of those who said they like Alito did not want to hazard a guess at his chances for confirmation. However, few see anything but a contentious path on the way to a final decision in the U.S. Senate. In the wake of White House Counsel Harriet Miers’ withdrawn nomination and early opposition to Alito among a number of Democratic leaders and liberal interest groups, local lawyers and political pundits Monday expressed diverse opinions over the likely shape of the upcoming confirmation process. Former Philadelphia Bar chancellor and Saul Ewing partner Gabriel L. I. Bevilacqua, a Democrat who supports Alito, said when it comes to judicial nominations, “the Senate has really changed in the past years,” focusing on philosophy rather than qualifications. “This is going to be a terrible, contentious battle,” he said. Ballard Spahr Andrews & Ingersoll chairman Arthur Makadon, who is also a supporter of Alito, disagreed. “There shouldn’t be much of a battle,” he said. “He should be confirmed.” Some say, though, that regardless of Alito’s qualifications, it’s all political from here on out. “It’s a political process that comes next,” Philadelphia Bar Chancellor Andrew Chirls said. “There’s going to be a look at his Constitutional views, his employment views.” “This is going to be a titanic struggle in the Senate over philosophy, not qualifications,” Bevilacqua said. “These are not politicians, they are judges.” Alfred W. Putnam Jr., chairman of Drinker Biddle & Reath, said “I assume he’ll be confirmed.” “I understand there’ll be political opposition,” said Putnam, who is a prominent Republican. “They’ll get the same thing they did with Roberts.” POLITICAL ‘BATTLE’ SEEN Director of the Center for Politics and Political Affairs at Franklin & Marshall College, G. Terry Madonna, said he wondered how anyone could predict an easy confirmation process for Alito. “I think this is a battle royale,” he said. “I don’t know how you step back from this and not see it as a brutal fight.” “Liberals are going to look at this as a pivotal vote that will take the court in a direction they won’t like,” Madonna said, adding that Alito will be accused of being an ideologue. Madonna said that there are three main issues that will appear in his confirmation hearings; religion and the courts, civil rights and the courts, and the biggest issue being the future of the central holding of Roe v. Wade which established a woman’s right to reproductive choice. Most agree that Alito’s dissenting opinion in Planned Parenthood v. Casey, where he argued a Pennsylvania law requiring women to notify their spouse before an abortion takes place was constitutional, will be a major focus of his hearings. Madonna said that case — focused on the issue of spousal notification — did not deal directly with the central holding of Roe. Because the notification law presented a case of first impression, it will be difficult to argue from the Casey dissent that Alito does not follow court precedent, Madonna said. M. Duncan Grant, a litigation partner at Pepper Hamilton, went to school with Alito at Princeton University. Although he does not agree with Alito’s politics, he said he would make a “terrific justice.” “This would not be a wise appointment to oppose,” Grant said “Since we have a Republican president who will nominate a conservative, I think it is a phenomenal choice.” They may not agree with his politics, but they agree with the nomination. “Sam is definitely conservative by personality, and by outlook and by political viewpoint,” Grant said. “He is a very, very intelligent, thoughtful, balanced and open-minded person.” Charles Becker is an appellate litigation associate at Reed Smith and the chairman of the Appellate Courts Committee for the Philadelphia Bar Association. Becker said Alito’s opinions are very well-written, well-researched and well-considered. “He decides cases on their merit,” he said. “Those are the hallmarks of a good judge and he has all of them.” “He’s totally qualified in the sense that folks were concerned about Harriet Miers not having a record.” Nancy Winkelman, an appellate lawyer at Schnader Harrison Segal & Lewis who characterizes herself on the opposite end of the political spectrum from Alito, has argued in front of him on numerous occasions. “He is principled more than ideological,” she said. “He’ll review the case before him on its merits, not just a results-driven outcome.” Putnam said he is a very meticulous, careful judge. “If they want to describe him as a difficult, aggressive, radical bomb-thrower, he’s not that guy,” he said. “He’s conservative.” “He doesn’t raise any questions with respect to ability,” Makadon said. “He’s a first-class nominee so there can’t be a dispute on that.” MORE LIKE ROBERTS? Is “Scalito” — a nickname coined by 3rd Circuit courthouse wits to compare Alito to another conservative born in Trenton, N.J., Justice Antonin Scalia — just a clever play on words? Local lawyers say a more apt comparison can be drawn between Alito and Chief Justice John G. Roberts Jr., not to the often-confrontational Scalia. Although many observers are looking for points of similarity between the judicial records of Alito and Scalia, many who know the 3rd Circuit judge say that their personalities are nothing alike. “Judge Alito is more reserved as a person,” Becker said. “Comparisons between Justice Scalia and Judge Alito are not well-rounded.” Makadon said Alito is in a league with Roberts. “I thought the president would have trouble finding someone like Chief Justice Roberts,” he said, adding that he was proved wrong. Putnam said the comparison between Alito and Scalia probably came from the fact that when Alito was appointed to the 3rd Circuit in 1990, he was the most conservative judge on the court at that time. “They’re both what we would call conservative on judicial philosophy,” he said. Grant does not know where the comparison came from. “Sam by personality is just the opposite of the Scalia that I read about,” he said. “There is no way Sam would ever say some of the things Scalia says.” “I have argued before Scalia and I have argued before Alito, and in terms of temperament, Judge Alito has a much more mild and modest way to him,” Winkelman said. Madonna said Alito is more of an incrementalist than a textualist or an originalist. “He’s more of a gradualist, like Roberts,” he said. “He’s not all that unlike Roberts really, just a longer record.” Putnam said.

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