Record leaves no doubt he's conservativeAlito ruled on guns abortion, harassmentBy Bob Egelko
Samuel Alito Jr. has the most judicial experience of any U.S. Supreme Court candidate since Benjamin Cardozo in 1932, and the most conservative judicial record of any candidate since Robert Bork in 1987.
Alito's 15 years on the Third U.S. Circuit Court of Appeals in Philadelphia provide a storehouse of ammunition for both supporters and opponents of President Bush's nominee to succeed retiring Justice Sandra Day O'Connor.
A sampling of his 300 published opinions shows a careful, workmanlike judge who quietly explains his conclusions without needless rhetoric, ideological pronouncements or attacks on opponents. Alito can vote to uphold a city's display of a creche, a menorah and other holiday symbols without a discourse on religion in public life and to uphold a spousal-notification requirement for abortions without condemning either abortion or the 1973 Roe vs. Wade ruling.
But the same decisions also show a judge who takes the conservative position in nearly every controversy, and who would line up well to the right of O'Connor on issues such as abortion, employment discrimination and family medical leave, and possibly on gun regulation.
Bush set the tone for Alito's supporters Monday, stressing his qualifications and noting that he had spent more time on the bench than any nominee in more than 70 years. Cardozo, a revered figure in judicial history, was appointed to the Supreme Court by President Herbert Hoover 73 years ago after 19 years on New York state courts. He died six years later.
Opponents have a different model in mind: Bork, who was nominated by President Ronald Reagan in 1987 and was the last nominee to be rejected by the Senate. A federal appellate judge with undisputed academic and intellectual credentials, he gave his foes all the weapons they needed by denying a constitutional right to privacy and questioning Supreme Court rulings on free speech, desegregation and sex discrimination.
Alito's style is far less confrontational than Bork's, but their nominations appear to have at least one thing in common: Alito's long paper trail, and the importance of his nomination to a pivotal seat on the court, foreshadow a confirmation hearing that promises to delve more deeply into legal issues than any since Bork's.
Alito is certain to be questioned closely on abortion, and particularly on his dissent in a 1991 case. He disagreed with his court's decision to overturn a Pennsylvania law that would have required a married woman to notify her husband before obtaining an abortion, except in cases of spousal abuse.
"A husband has a legitimate interest in the welfare of a fetus he has conceived with his wife,'' Alito wrote. "The 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.''
A majority of the appeals court ruled that the provision was an "undue burden'' on women's access to abortion, and the Supreme Court agreed in a 6-3 ruling in 1992, with O'Connor in the majority. Chief Justice William Rehnquist's dissenting opinion cited Alito approvingly and also called for the repeal of the 1973 Roe vs. Wade ruling, which legalized abortion.
Alito has not expressed an opinion on Roe vs. Wade, which was narrowed but upheld by the high court in the 1992 case. However, the Associated Press quoted his mother as telling reporters in New Jersey that her son opposes abortion. Regardless of his position, five of the eight remaining justices are on record as supporting a constitutional right to abortion.
Alito has taken part in at least one other abortion case, a 2000 ruling overturning New Jersey's ban on abortions in which the fetus is removed partially intact before being aborted. He noted that the Supreme Court had just struck down a virtually identical Nebraska law. The high court could reconsider the issue next year if it agrees to review a similar federal law.
On another recurring topic, Alito has backed limits on federal power over the states, an issue in cases ranging from environmental protection to civil rights.
His 2000 opinion declared the federal Family and Medical Leave Act partly unconstitutional, saying Congress lacked the power to allow state government employees to sue for denial of leave. The Supreme Court disagreed in a separate case three years later.
Alito also wrote a 1996 opinion saying that a federal ban on possessing machine guns exceeded Congress' power to regulate interstate commerce, but a majority of his court disagreed, and the Supreme Court denied review. He took no position on whether the Constitution protects an individual right to possess firearms.
Alito has voted to uphold death sentences in several disputed cases. One of his opinions was overturned earlier this year by the Supreme Court, which ruled 5-4 that a death row inmate's lawyer acted incompetently by failing to examine the inmate's record for evidence of his childhood and mental condition. He also dissented from a 2001 ruling overturning a death sentence on the grounds of racial discrimination in jury selection.
On the other hand, he wrote a ruling in 2003 that set aside a Pennsylvania man's murder conviction and ordered a new hearing on a juror's alleged racial slurs.
In employment discrimination, Alito was the only dissenter from his court's 12-1 ruling in 1996 that allowed a woman to take her sex discrimination suit to trial. He said her employer's explanation of its nondiscriminatory motives required dismissal of the suit. He also dissented from a 1996 ruling that required a state university to give a campus police officer a hearing before suspending him because of a past arrest record; the Supreme Court later agreed with Alito.
Alito has not ruled directly on gay rights, but two of his opinions have touched on related topics.
He wrote a 2001 ruling overturning a school district's anti-harassment policy that included bans on anti-gay slurs, saying the policy was too broad and violated freedom of speech.
But in a 2004 case, Alito said a school district failed to provide a "free appropriate public education'' to a youth who was subjected to anti-gay taunts and harassment by bullies and then was denied a transfer to a school that offered more protection.
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Key rulings
Some major opinions by Judge Samuel Alito Jr. on the U.S. Court of Appeals:
Abortion: Voted in 1991 to uphold a Pennsylvania law requiring a married woman to notify her husband before obtaining an abortion, except in cases of spousal abuse. A majority of his court voted to overturn the law.
Family leave: Wrote a 2000 ruling declaring unconstitutional a federal law that allowed state employees to sue their governments for denying leave to care for a family member. The Supreme Court later upheld the law.
Guns: Voted to declare a federal ban on possessing machine guns unconstitutional, saying it exceeded the power of Congress to regulate interstate commerce. A majority of his court voted to uphold the law. Harassment: Wrote a 2001 ruling overturning a school district's anti-harassment policy that included a ban on anti-gay slurs, saying it violated free speech.
Bullying: Wrote a 2004 ruling saying a school district violated the rights of a student who was taunted by bullies with anti-gay slurs and was denied a transfer to a school that offered more protection.
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/11/01/MNGG3FH6UP1.DTL*FW Note:Guns: Voted to declare a federal ban on possessing machine guns unconstitutional, saying it exceeded the power of Congress to regulate interstate commerce.
In the machine gun case, United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), the defendant, a federally licensed firearms dealer, had sold two illegal machine guns at a Pennsylvania gun show.
Alito argued that the machine gun ban violated the Commerce Clause. Judge Alito's unusual reading of the Commerce Clause was ridiculed by his colleagues on the bench, who suggested that Alito's reasoning violated "a basic tenet of the constitutional separation of powers." The majority stated that Alito did not give the proper "deference that the judiciary owes to its two coordinate branches of government, a basic tenet of the constitutional separation of powers." The judges chided Alito for demanding that "Congress or the Executive play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute."
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Alito stepped out of the box and dissented on a case
in favor of the Constitution. This consideration drew
ridicule from his peers.
I'm not a one issue guy, but
this one issue tells me that he's worth taking seriously.
