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
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
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
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
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
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.