The nomination battle over the newest Supreme Court candidate could come down to one word: “Scalito”. That is the nickname that brands Judge Samuel Alito as a rightwinger in the mould of Justice Antonin Scalia, a fellow Italian-American and one of the current Supreme Court's most reliably conservative jurists. But does the nickname really capture the man?
Everyone agrees that Judge Alito, a 15-year veteran of a relatively liberal federal appeals court, is a solidly conservative jurist. But he is also widely respected – even among liberals – for his intellect, his commitment to the law, and his reluctance to overturn legal precedents. Legal experts who know the nominee well call him one of the sharpest legal minds in America – who could well prove less ideologically rigid than his near-namesake.
“He's not going to be anybody's follower,” says Mark Levy, Supreme Court expert at the law firm Kilpatrick Stockton and a former law school classmate of Judge Alito. “He's very independent and very smart.”
As a long-serving federal judge, former US attorney for New Jersey, and government lawyer in the Department of Justice, Judge Alito “brings exceptional experience to the Court”, says Mr Levy, who served in the Justice Department under President Bill Clinton, a Democrat. Mr Levy draws a parallel with the new chief justice, John Roberts, widely respected across the political spectrum for his intelligence and legal knowledge.
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But as a nominee, Judge Alito has one big disadvantage compared with Chief Justice Roberts: he has a long track record of rulings in areas that inflame liberal opposition.
Yesterday several liberal interest groups immediately vowed to defeat the nomination to fill the seat currently held by Justice Sandra Day O'Connor, who votes with the court's liberal wing on many social issues. They complained that his nomination would dramatically shift the balance of the nine-member court to the right.
Liberal interest groups and politicians are likely to focus on a handful of rulings from the more than 3,500 cases Judge Alito is believed to have heard as a judge on the third circuit federal appeals court. One opinion that could become the judge’s most controversial is his 1991 dissent arguing for upholding a Pennsylvania law that had required women seeking abortions to inform their spouses.
Judge Alito’s view was later rejected by the US Supreme Court, which used the case to reaffirm the central constitutional right to an abortion.
Liberal groups have seized on that dissent as proof that Judge Alito “has demonstrated hostility toward the principles undergirding a woman's constitutionally protected right to govern her own reproductive choices”, according to People for the American Way, a liberal lobby group.
But conservative legal experts say that in his dissent, Judge Alito was merely doing his job as an appellate judge: applying the legal standard set out earlier by the Supreme Court, which held that such laws are constitutional as long as they imposed no “undue burden” on the woman involved. In 1992, the Supreme Court tightened that standard when it heard the Pennsylvania case itself. But when Judge Alito heard the case the previous year, conservatives say, he was merely following precedent as it existed then.
Venturing into the contentious area of religion in public life, Judge Alito also wrote a majority opinion holding that a municipal holiday display that included a creche and a menorah did not violate the constitution's mandated separation of church and state, because it included such secular symbols as Frosty the Snowman.
Conservative bloggers – who helped sink the nomination of Harriet Miers, and yesterday rose quickly to support Judge Alito – stressed that the issue in the case was not whether the nominee himself favours spousal notification, but “whether the Pennsylvania legislature could make that policy decision and enshrine it in law without violating the constitution”. Some pointed out that in another case, the judge joined his colleagues to strike down a law banning a late-term abortion procedure.
Democrats have also served notice that they will fight Judge Alito on the grounds that he “would go to great lengths to restrict the authority of Congress to enact legislation to protect civil rights and the rights of workers”, according to Senator Patrick Leahy, the top Democrat on the Senate judiciary committee. Liberal interest groups have highlighted several race, gender and disability discrimination cases in the workplace where Judge Alito set a high standard for plaintiffs to meet before their case could be heard in court.
Business sources who have reviewed Judge Alito's past rulings say they expect him to be a “pro-business judge”. John Engler, president of the National Association of Manufacturers, said yesterday the nominee had “a reputation for strict interpretation of the constitution, and that stands him in good stead with us”. Business groups want a nominee who will not interpret the constitution to expand business liability.
But perhaps the biggest difference between Judge Alito and Justice Scalia could turn out to be temperament. Even if the two men were to vote along the same conservative lines, the soft-spoken, even-tempered Judge Alito could well prove less aggressive about advancing his views than the combative and acerbic Justice Scalia.
