Published October 31, 2005
The short list of potential nominees to the U.S. Supreme Court suddenly appeared much shorter Friday as 3rd U.S. Circuit Court of Appeals Judge Samuel A. Alito Jr. quickly emerged as perhaps the most likely second choice to fill Justice Sandra Day O’Connor’s seat.
In the wake of Harriet Miers’ withdrawal of her nomination, the New York Times reported Friday that Alito was one of three finalists three weeks ago when Miers was chosen. The other, according to theTimes, was 4th Circuit Judge J. Michael Luttig.
Hours later, on the popular law blog, SCOTUSblog.com, attorney Tom Goldstein was predicting that Alito would be picked – and soon.
Judge Alito would energize the president’s conservative supporters. But he would not be as much of a fight as the others. Luttig and [5th Circuit Judge Priscilla] Owen, in particular, raise the serious prospect of a filibuster and it seems unlikely in the current environment that the administration is anxious to have that fight, Goldstein wrote.
It seems to me that the pressure to nominate a woman is considerably lessened now, and the focus is on getting someone confirmed. Judge Alito will be grudgingly confirmable to many Democrats once they look at his record, Goldstein wrote.
Goldstein’s political calculus could prove to be dead on, especially if the White House is intent on moving quickly and avoiding an ugly confirmation battle.
Born on April Fool’s Day in 1950, the 55-year-old Alito might be exactly what Bush is looking for. His resume reads like a recipe for highcourt consideration – beginning with undergrad studies at Princeton, perhaps the Ivy League’s most welcoming home for conservatives seeking elite educations, and a law degree from Yale, the Bush family’s sentimental favorite.
After a clerkship with 3rd Circuit Judge Leonard I. Garth, Alito worked as a front-line federal prosecutor in New Jersey for four years. But soon after President Ronald Reagan was elected, Alito joined the Office of the Solicitor General, staying for four years and helping to decide what position the administration would take in cases up for review by the Supreme Court.
That was followed by a three-year stint at Main Justice as a deputy assistant attorney general. In 1987, at the age of 37, Alito was appointed U.S. Attorney for the District of New Jersey, a post he held until he was tapped in 1990 by the first President Bush to join the 3rd Circuit.
On the hot-button issues, Alito has been consistently conservative – so conservative that some lawyers have given him the nickname Scalito. Roughly translated, the nickname means Little Scalia, suggesting that Alito has modeled his judicial philosophy after Supreme CourtJustice Antonin Scalia.
If Alito is nominated and his record is put under the national microscope, conservatives are likely to be happy with what they see.
In ACLU v. Schundler, Alito wrote the majority opinion holding that a city’s holiday display that included a creche and a menorah did not violate the establishment clause of the First Amendment because it also included secular symbols such as Frosty the Snowman and a banner promoting racial diversity.
On abortion, Alito was the lone dissenter in Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that required women seeking abortions to inform their husbands.
Alito argued that the Pennsylvania law’s restrictions should have been upheld, sayingthe Pennsylvania Legislature 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 constraints, future plans or the husbands’ previously expressed opposition – that may be obviated by discussion prior to the abortion.
The case went on to the Supreme Court, resulting in a 6-3 decision that reaffirmed Roe v. Wade and struck down the spousal notification provision of the law. But late Chief Justice William Rehnquist, in his dissent, quoted Alito’s underlying dissent and said he agreed with his reasoning.
In fact, over the years, Alito has been a frequent dissenter. And, unlike in Casey, he has sometimes been vindicated, when the Supreme Court reversed his colleagues and made his view the law.
In Homar v. Gilbert, Alito dissented from a ruling that a state university had violated a campus police officer’s due process rights by suspending him without pay immediately after he was arrested on drug charges. The Supreme Court later agreed with Alito’s view that no hearing was required because the criminal charges showed that the suspension was not baseless.
Perhaps Alito’s most memorable dissent came in 1996 in Sheridan v. Dupont, a sex discrimination suit that forced the 3rd Circuit to tackle fundamental questions about the plaintiff’s burden of proof.
The issue in Sheridan was whether a plaintiff in a sex-discrimination case can survive summary judgment simply by casting doubt on the employer’s proffer of legitimate, nondiscriminatory reasons for the adverse employment decision.
More specifically, the question was how the 3rd Circuit should interpret the 1993 Supreme Court decision in St. Mary’s Honor Center v. Hicks, in which thejustices held that once an employer offers legitimate reasons for its conduct, the presumption of discrimination is rebutted and drops from the case.
After Hicks, the federal circuits split, with a few creating what came to be known as the pretext-plus standard, meaning plaintiffs must do more than merely cast doubt on an employer’s explanation to have the case go forward.
In Sheridan, a 12-judge en banc panel rejected the pretext-plus theory, saying it was within the province of the jury to decide when discrimination had occurred.
Alito, the lone dissenter, argued his colleagues were going too far by allowing plaintiffs to get their case to a jury whenever they managed to cast any doubt on the employer’s version.
If the majority had merely said that … a defense motion for summary judgment or judgment as a matter of law must generally be denied, I would agree, Alito wrote. But instead, he said, his colleagues had established a blanket rule against summary judgment that was legally unsound.
If Alito is nominated and confirmed for a seat on the Supreme Court, there is one thing he’d likely lose – the chance ever to be called chief.
Currently, Alito is in line to succeed 3rd Circuit Chief Judge Anthony J. Scirica, who started his seven-year term in May 2003. But if Alito is elevated, the 3rd Circuit’s next chief would be Judge Theodore A. McKee Jr.
In the media frenzy that accompanies any Supreme Court nomination, Alito’s nickname is sure to surface. One Internet Web site is already poised to cash in on opposition to many of the potential nominees with a line of bumper stickers. Among the offerings is one that reads: There’s a reason they call him ‘Scalito.
In some ways, the Scalito moniker hits the mark. In his 13 years on the 3rd Circuit, Alito has earned his stripes as a strong and intelligent voice on the growing conservative wing of a court once considered among the country’s most liberal.
And as with Scalia, lawyers say Alito’s vote is easy to predict in highly charged cases.
But where the nickname misses is temperament, or what some might call personality. Both on the bench and in person, Alito is no Scalia.
Although he’s a frequent dissenter and not at all afraid to disagree with his colleagues, Alito’s opinions are usually devoid of passion. And his tone during oral arguments is probing but always polite – a sharp contrast from the often-caustic tone adopted by Scalia both on the bench and in his dissents.
Oddly enough, the Scalito nickname seems to have caught on even among some conservatives who appear to use it as a compliment.
On the Internet site RightWingNews.com, an entry earlier this year used the nickname, but made the mistake of describing Alito as Hispanic.
He’s not; he’s Italian.
The site said either Alito or 5th Circuit Judge Emilio Garza could be the first Hispanic judge ever appointed to the Supreme Court, and that if either were confirmed it would lessen Bush’s motivation to appoint [Attorney General Alberto] Gonzales.
The site went on to comment that either Alito or Garza would be a great addition to the Supreme Court, but they’re both down a notch from Luttig, [now Chief Justice John] Roberts and Owen because they’re a little older and an extra five to eight years for a conservative justice on the Supreme Court is no small thing.