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Lawyers who practice before the 3rd U.S. Circuit Court of Appeals said Monday that Judge Samuel A. Alito Jr. is one of the court’s most conservative judges, but that he is almost certain to win confirmation to the U.S. Supreme Court due to the sheer power of his intellect. And when Alito’s judicial record is closely scrutinized — as it surely will be in the next few weeks — many lawyers predicted that Democrats in Senate will be hard-pressed to find much of anything to take issue with because Alito is “intellectually honest” and “not an ideologue.” If confirmed, Alito, 55, would be the first 3rd Circuit judge ever elevated to the Supreme Court. Lawyers who know Alito complained Monday that his nickname — “Scalito” — has unfairly branded Alito as a carbon copy of Justice Antonin Scalia and a “knee-jerk conservative” whose vote is predictable. “To call him ‘Scalito’ is to completely misunderstand him,” said attorney Timothy K. Lewis of Schnader Harrison Segal & Lewis, a former 3rd Circuit judge who was Alito’s colleague for seven years. Lewis, who describes himself as liberal, said Alito is solidly conservative and that the two sometimes disagreed, but that it was “always a deeply respectful disagreement.” “First and foremost,” Lewis said, “Sam Alito is intellectually honest. This is what makes him a wonderful judge and also why I feel very good about his appointment to the Supreme Court.” Lewis recalled that when he joined the 3rd Circuit in 1992, he met with the court’s former chief judge, A. Leon Higginbotham, to discuss the cast of characters who would soon become his colleagues. When Alito’s name came up, Lewis said, Higginbotham, who died in 1998, had only good things to say. “He said ‘Sam Alito is my kind of conservative,’” Lewis said, and went on to describe Alito as “full of integrity” and “a pleasure to sit with.” Lewis said Higginbotham’s description proved to be an accurate one, and that, despite their occasional disagreements, he found Alito to be a “careful” and “thoughtful” judge who is “reticent to the point of being shy.” “Perhaps the best word to describe him is principled,” Lewis said. Attorney Peter Goldberger, a classmate of Alito’s in the 1975 class at Yale Law School, said Alito “never makes a point of proving that he’s the smartest person in the room — even though he is.” If Democrats and interest groups try to mount an opposition to Alito’s confirmation, Goldberger predicted that it will fail because “they’re not going to find anything bad about this guy…. He’s as honest as the day is long.” Goldberger, who specializes in criminal defense appeals, said he, too, believes Alito has been unfairly branded as an automatic vote for the prosecution when, in reality, his record on the appellate court shows that his vote is not always predictable. In death penalty cases, Goldberger said, Alito has voted to uphold death sentences in three cases and voted to overturn them in five. As a justice on the Supreme Court, Goldberger conceded that he “doesn’t relish” how Alito is likely to vote in important criminal cases, but that “he’s not a right wing nut.” And prosecutors would be wrong to count on Alito’s vote in every case, Goldberger said, because “if he thinks the prosecutors have not played by the rules, he won’t tolerate it.” Attorney Burt Rublin of Ballard Spahr Andrews & Ingersoll said he has represented banks and other big business interests in cases before Alito and has lost a few. “He’s not a pro-business ideologue,” Rublin said. As for Alito’s manner on the bench, Rublin said he was “a pleasure” and that, even when Alito was rejecting his arguments, he was always polite about it. “He doesn’t pander to the press with soundbites,” Rublin said. Attorney Alan Epstein of Spector Gadon & Rosen also described Alito as “intellectually honest” and said he considers him “eminently qualified” to sit on the Supreme Court. Unlike “result-oriented” judges who “decide where they want to be and then figure out how to get there,” Epstein said, Alito has a solid track record of judging each case on its facts and applying the law as he sees it to those facts. “I don’t think you can ask more of a judge,” Epstein said. Epstein said Alito’s “brand of conservatism is encapsulated in a strict adherence to what he believes are inviolate constitutional principles.” But while a Justice Alito would likely align himself with the conservative wing of the court, Epstein predicted that Alito would not agree with Justices Scalia and Clarence Thomas on all issues. “He may surprise us,” Epstein said. Attorney Howard Bashman, who specializes in appellate work, said he, too, believes that the “Scalito” nickname is an unfair one. “He doesn’t live up to it in any respect,” Bashman said. While Scalia has a reputation for being brash and sometimes tough on lawyers, Bashman said that Alito is “shy, kind and endearing.” In his 15 years on the 3rd Circuit, Bashman said, Alito has created a body of caselaw that shows is “not doctrinaire” and his votes are sometimes unpredictable. As for his colleagues on the 3rd Circuit, Chief Judge Anthony J. Scirica said the court “couldn’t be more pleased” and that Alito will be an excellent addition to the high court because he is “a brilliant, scholarly judge.”

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