First Amendment topicsAbout the First Amendment
News Story
 
Bush nominates Samuel Alito for high court

By The Associated Press
10.31.05

WASHINGTON — President Bush, stung by the rejection of his first choice, nominated conservative judge Samuel Alito today to replace moderate Justice Sandra Day O'Connor in a bid to reshape the Supreme Court and mollify his political base.

Judicial conservatives praise Alito's 15 years on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, a tenure that gives him more appellate experience than almost any previous Supreme Court nominee, and say Alito has been a powerful voice for the First Amendment's guarantees of free speech and the free exercise of religion. They say his record shows a commitment to a strict interpretation of the Constitution, ensuring that the separation of powers and checks and balances are respected and enforced.

"Judge Alito is one of the most accomplished and respected judges in America," the president said in announcing Alito's selection. "He's got a mastery of the law and a deep commitment to justice." Bush exhorted the Senate to confirm his choice by the end of the year.

The choice of Alito is likely to spark a political brawl. Unlike the nomination of Harriet Miers, which was derailed last week by Bush's conservative allies, Alito faces opposition from Democrats.

"The Senate needs to find out if the man replacing Miers is too radical for the American people," said Senate Minority Leader Harry Reid, D-Nevada.

In contrast to Miers, Alito "has more prior judicial experience than any Supreme Court nominee in 70 years," the president said.

Alito has been a strong conservative jurist on the 3rd Circuit, a court with a reputation for being among the nation's most liberal.

So consistently conservative, Alito has been dubbed "Scalito" or "Scalia-lite" by some lawyers because his judicial philosophy invites comparisons to conservative Supreme Court Justice Antonin Scalia. But while Scalia is outspoken and is known to badger lawyers, Alito is polite, reserved and even-tempered.

Alito, 55, brings a hefty legal resume that belies his age. He has served on the federal appeals court for 15 years since President George H.W. Bush nominated him in 1990.

If confirmed, Alito would be the fifth Catholic on the Supreme Court.

Alito has ruled in several prominent First Amendment cases, including a 1999 decision, Fraternal Order of Police v. City of Newark, in which the 3rd Circuit ruled 3-0 that Muslim police officers in the city could keep their beards. The police department had made an exemption in its facial hair policy for medical reasons (a skin condition known as pseudo folliculitis barbae) but not for religious reasons.

Alito wrote the opinion, saying, "We cannot accept the department's position that its differential treatment of medical exemptions and religious exemptions is premised on a good-faith belief that the former may be required by law while the latter are not."

In July 2004, the 3rd Circuit ruled in The Pitt News v. Pappert that a Pennsylvania law prohibiting student newspapers from running ads for alcohol was unconstitutional. At issue was Act 199, an amendment to the Pennsylvania Liquor Code passed in 1996 that denied student newspapers advertising revenue from alcoholic beverages.

Alito said the law violated the First Amendment rights of the student newspaper, The Pitt News, from the University of Pittsburgh.

"If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment," Alito wrote.

In 1999, Alito was part of a majority opinion in ACLU v. Schundler. At issue was a holiday display in Jersey City. The court held that the display didn't violate the establishment clause of the First Amendment because in addition to a creche and a menorah, it had a Frosty the Snowman and a banner hailing diversity.

Alito wrote the opinion of the 3rd Circuit in Saxe v. State College Area School District, a 2001 ruling that struck down as contrary to the First Amendment a public school anti-harassment policy. The stated purpose of the policy was to provide “all students with a safe, secure, and nurturing school environment.”

“There is no question,” Alito wrote, “that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive.” Using the Tinker standard, Alito ruled the policy “unconstitutionally overbroad.”

Charles Haynes, First Amendment Center senior scholar, said, "Judge Alito struck a blow for free speech in schools by striking down the district’s loosely worded 'anti-harassment' policy that banned a wide range of speech including comments about 'hobbies and values.'"

One of Alito's most notable opinions was his dissent in the 1996 case of Sheridan v. Dupont, a sex-discrimination case. Alito wrote that a plaintiff in such a case should not be able to withstand summary judgment just by casting doubt on an employer's version of the story.

In the 1993 decision Fatin v. INS, Alito joined the majority in ruling that an Iranian woman seeking asylum could establish eligibility based on citing that she would be persecuted in Iran for her gender and belief in feminism.

Among his noteworthy opinions was his lone dissent in the 1991 decision Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

In 2000, though, Alito joined the majority that found a New Jersey law banning late-term abortions unconstitutional. In his concurring opinion, Alito said the Supreme Court required such a ban to include an exception if the mother's health was endangered.

On the spousal-notification law, 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," Alito wrote.

The Supreme Court, in a 6-3 ruling, struck down the spousal notification, but Chief Justice William Rehnquist quoted from Alito's opinion in his dissent.

Other cases include Homar v. Gilbert in 1996, in which Alito wrote the dissenting opinion that a state university didn't violate the due-process rights of a campus police officer when it suspended him without pay after learning he had been arrested on drug charges.

In a 1996 ruling that upheld the constitutionality of a federal law banning the possession of machine guns, Alito argued for greater state rights in reasoning that Congress had no authority to regulate private gun possession.

Former appellate judge Timothy Lewis, who served with Alito, has ideological differences with him but believes he would be a good Supreme Court justice.

"There is nobody that I believe would give my case a more fair and balanced treatment," Lewis said. "He has no agenda. He's open-minded, he's fair and he's balanced."

In a May 2005 profile in The (Newark) Star-Ledger, Alito said, "Most of the labels people use to talk about judges, and the way judges decide (cases) aren't too descriptive. ... Judges should be judges. They shouldn't be legislators, they shouldn't be administrators."

"The Supreme Court is an institution I have long held in reverence," Alito said this morning. "During my 29 years as a public servant, I've had an opportunity to view the Supreme Court from a variety of perspectives."

The White House hopes the choice mends a rift in the Republican Party caused by the failed nomination of Miers, a Bush loyalist, and puts his beleaguered presidency on a path to political recovery.

With the rebuke of Miers, the rising death toll in Iraq, his slow-footed response to Katrina and the Oct. 28 indictment of top vice presidential aide I. Lewis "Scooter" Libby, Bush's approval ratings are at the lowest ebb of his presidency.

Polls show Democrats and most independents don't approve of the president's job performance, leaving the conservative wing of his party the only thing keeping Bush afloat politically.

Miers bowed out on Oct. 27 after three weeks of bruising criticism from members of Bush's own party who argued that the Texas lawyer and loyal Bush confidante had thin credentials on constitutional law and no proven record as a judicial conservative.

If he is confirmed by the Senate, Alito would join another Bush pick on the bench, Chief Justice John Roberts. O'Connor, who is retiring, has been a decisive swing vote in a host of affirmative action, abortion, campaign-finance, discrimination and death-penalty cases.

"The president has made an excellent choice today which reflects his commitment to appoint judges in the mold of Scalia and Thomas," said Kay Daly, president of the conservative Coalition for a Fair Judiciary.

"It's a pretty predictable move from a politically crippled president," said Democratic consultant Jim Jordan. "Toss out a judicial extremist to pacify his base and provoke a fight that he hopes changes the subject away from indictments and Iraq and Katrina and a soft economy."

While Alito is expected to win praise from Bush's allies on the right, Democrats have served notice they will fight it. Reid had warned yesterday that the pick would "create a lot of problems."

Liberal groups say his nomination raises troubling concerns, especially when it comes to his record on civil rights and abortion rights.

Before joining the 3rd Circuit, Alito was U.S. attorney for the District of New Jersey from 1987 to 1990, where his first assistant was a lawyer by the name of Michael Chertoff, now the Homeland Security secretary.

Alito was the deputy assistant attorney general in the Reagan administration from 1985 to 1987 and assistant to the solicitor general from 1981 to 1985.

His New Jersey ties run deep. Alito, the son of an Italian immigrant, was born in Trenton and attended Princeton University. He headed to Connecticut to receive his law degree, graduating from Yale University in 1975. He served in the Army Reserves from 1972 until 1980, when he was discharged as a captain.


Related

Appellate panel OKs N.J. city's modified holiday display

Judges overturn ban on government-sponsored celebration of winter holidays. 02.19.99

High court won't review decision allowing Muslim cops to wear beards
Federal appeals court ruled that New Jersey police department had to allow Islamic officers to keep beards for religious reasons. 10.04.99

School anti-harassment policy overturned
Ruling that State College, Pa., policy violates free speech could affect schools in Pennsylvania, New Jersey, Delaware, Virgin Islands. 02.15.01

Roberts confirmed as 17th chief justice
Senate votes 78-22 to confirm 50-year-old appellate judge as Rehnquist's successor. 09.29.05

Miers withdraws nomination
Bush says she based decision on congressional effort to obtain internal documents related to her role as presidential counsel. 10.27.05

O'Connor faces major cases as she awaits successor
Harriet Miers' withdrawal puts retiring justice at center of upcoming Supreme Court debates on several controversial issues. 10.28.05

Samuel Alito's majority First Amendment opinions
List of cases in which Judge Samuel Alito wrote the majority opinion. 10.31.05

Judge Alito fairly strong on free expression
By Ron Collins, David Hudson Nominee's opinions show receptivity to First Amendment concerns. 10.31.05

New Supreme Court needs new First Amendment direction
By Paul K. McMasters Over the next year justices will render opinions in cases that bear directly on whether we have full or constricted freedoms when we wish to engage in crucial issues. 10.07.05

Online symposium: Samuel Alito & the First Amendment


News summary page
View the latest news stories throughout the First Amendment Center Online.

print this   Print


Last system update: Friday, July 25, 2008 | 10:03:29
 SEARCH  MORE
About this site
About the First Amendment
About the First Amendment Center
Video/RSS/podcasts
First Amendment programs
State of the First Amendment
reports

First Reports
Supreme Court
Experts
Columnists
First Amendment publications
First Amendment Center history
Glossary
Freedom Sings™
Events
First Amendment
Schools

Congressional Research Service reports
Guest editorials
FOI material
The First Amendment
Library

Lesson plans
freedomforum.org
Newseum
Contact us
Privacy statement
Related links