The Right Man for the Job? The Nomination of Samuel Alito | Valerie Schmalz | October 31, 2005

The stakes are high.

For if the U.S. Senate confirms federal appeals court Judge Samuel Alito as a Supreme Court justice, the dominant judicial philosophy of the nation’s highest court would probably shift.

A partial birth abortion ban is likely to be upheld and non-denominational prayer at high school football games could be given the green light, Catholic legal scholars and observers said.

The majority needed to completely overturn Roe v. Wade would still be at least one vote away, but Alito could be a "pivotal" vote on religious liberty questions–such as non-denominational prayer at school events, the perennial "Christmas crèche" constitutional challenges, and whether the phrase "under God" should remain in the Pledge of Allegiance.

President George W. Bush’s October 31st nomination of the Philadelphia appeals court judge in the wake of Harriet Miers’ withdrawal has energized the pro-life, pro-family wing of the Republican party, although most said they would still wait for the Senate Judiciary Committee hearings to make a final judgment.

"It tells us this White House listened to religious conservatives who voiced their opposition to being asked to embrace a question box, which was the case with Harriet Miers," said Paul Schenck, director of the National Prolife Action Center in Washington, D.C., an early and outspoken opponent of Harriet Miers’ nomination. Miers withdrew her nomination last week after some Republicans joined Democrats in asking for documents from the White House.

"In nominating Samuel Alito, the president has given us a judge whose record is pro-life, pro-family, and pro-religious liberty," Schenck said.

Meanwhile, opponents to Alito were mulling the possibility of filibustering the nomination. But several Republicans in the bipartisan Gang of 14 that forged a compromise earlier this year said it appears unlikely that Alito’s nomination rises to the "extraordinary circumstance" that the coalition said could be invoked to allow a filibuster. The compromise was devised when Republican Senate leaders said they would be willing to change Senate rules so a simple majority would be enough to stop the non-stop talking parliamentary maneuver used by those in the minority and employed against a series of Bush’s judicial opponents to the lower courts.

"It’s just hard for me to believe that anyone would think this nomination is so far outside of the mainstream that it would qualify as filibuster material," Ohio Republican Sen. Mike DeWine said in an MSNBC television interview.

Alito received qualified congratulations from Sen. Sam Brownback, (R-Kansas), whose request for documents on Miers may have been the final straw.

"She had no record," Kansas Republican Sen. Sam Brownback told National Public Radio moments after Miers announced her withdrawal on October 27^th. "The Senate was not willing to give its advice and consent blindly."

Brownback issued a statement saying he commended the president and congratulated Alito: "I look forward to the upcoming confirmation hearing, during which members of the Judiciary Committee will have a robust and, I hope, civil dialogue with the nominee about the meaning of the Constitution and the role of the courts in American life."

However, opposition to Alito was also swift, with Ralph Neas of People for the American Way calling Alito "a nominee guaranteed to cause a bitter fight." Sen. Harry Reid (D-Nevada), the Democratic party's leader, asked whether Alito was "too radical for the American people" and also wondered aloud, according to Associated Press reports, "why those who want to pack the court with judicial activists are so much more enthusiastic about him" than Harriet Miers. Many news sources have mentioned that Alito has been given the nickname "Scalito", or "Little Scalia," because his views are considered very similar to those of Supreme Court Justice Antonin Scalia.

While a majority opposed to Roe v. Wade would not be created with an Alito confirmation, key cases on partial birth abortion and religious expression in public life would be decided differently with an Alito vote substituting for retiring Justice Sandra Day O’Connor, said Bernard Dobranski, dean of the Ave Maria School of Law.

"It will definitely change the direction of the court, not ultimately in the direction it needs to go," Dobranski said, since even when O’Connor truly retires (she is now serving until her replacement is confirmed), at least five justices are on record in support of Roe v. Wade. On religious liberty questions, Alito will make a big difference, since Justice Anthony Kennedy at times votes with Justices Antonin Scalia and Clarence Thomas, a group Dobranski expects with also include Chief Justice John Roberts.

"This should be pretty pivotal," Dobranski said.

Among Alito’s religious freedom opinions was one in favor of a Muslim police officer in New Jersey whose religion required him to keep a beard despite a department policy that officers remain clean-shaven. In another, Alito said a New Jersey school district was violating students’ free speech by barring religious organizations from distributing informational materials while allowing other student groups to do so.

"Judge Alito is a real champion of the right for religious expression, the most basic human right after the right to life," said Bill May, chairman of the San Francisco-based Catholics for the Common Good, a political advocacy group.

"He has heard cases involving diverse religious beliefs, and has always sided with the rights of the human person. His decisions also indicate an understanding that the establishment clause of the constitution guarantees freedom for religious express rather than freedom from religious expression," May said.

If Alito is confirmed he will be the fifth Catholic on the court. Of those Catholic justices, all but Kennedy espouse an "originalist" philosophy of strict application of the text and original understanding of the framers of the U.S. Constitution.

"Five Catholics, all of them appointed by Protestant presidents," St. Louis University history Prof. James Hitchcock said. "No Protestant to the best of my knowledge has raised the issue. A lot of the opposition to them comes from fellow Catholics, Democratic Senators Patrick Leahy, Edward Kennedy."

If Alito is confirmed, four of the five (Scalia, Thomas, Roberts, and Alito) are "social conservatives," said Hitchcock, whose two-volume history of the high court was recently published by Princeton University Press. "If you use the term social conservatives you can see these Catholics as people who are really carrying out the social teachings of the Catholic Church, on family, the immorality of abortion," Hitchcock said.

Alito’s record shows the Third Circuit Court judge is a believer in a textual interpretation of the U.S. Constitution and its amendments, Princeton constitutional scholar Robert George noted.

"Not just a preacher, but a practitioner of the idea of judicial restraint, the idea that judges should defer to legislatures where the Constitution has not authorized judicial intervention in the legislative process," George said.

"Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint-- always keeping in mind the limited role that the courts play in our constitutional system," Alito said, in remarks directly after Bush announced his nomination Monday. "And I pledge that if confirmed I will do everything within my power to fulfill that responsibility."

Bush emphasized that when Alito was appointed at the age of 39 to the U.S. Court of Appeals for the Third Circuit in 1990, the Senate confirmed him unanimously. "He understands that judges are to interpret laws, not to impose their preferences or priorities on people," Bush said.

Even if the Supreme Court eventually voted to overturn Roe v. Wade that is not the same as affirming a right to life for the unborn, notes Seana Sugrue, associate professor of political science at Ave Maria University. Justices Antonin Scalia and Clarence Thomas believe abortion is an issue to be decided by the states and if Alito is as close to Scalia in his thinking as many believe, he could well fall into that camp, Sugrue said.

With fifteen years as a judge in the U.S. Court of Appeals for the Third Circuit, Alito, 55, has ruled on some of the most controversial issues of the day–partial birth abortion, spousal notification of abortion and religious liberty. He was a lone dissenting vote in favor of spousal notification of abortion on the Third Circuit Court ruling in Casey v. Planned Parenthood, decided by the Supreme Court in 1992.

"On abortion, he has shown himself on case after case to be willing to be bound by his best understanding of what the law actually is," George said, noting Alito was the only judge to dissent on the Third Circuit ruling on spousal notification. "This is going to cause the pro-abortion people to be very hostile."

On the other hand, his deference to law is shown when he voted to strike down New Jersey’s partial birth abortion ban, saying it was similar to the Nebraska ban ruled unconstitutional by the Supreme Court, George said.

"What it shows is he is willing to go with what he understands the law to be, even if it is contrary to his personal political preferences," said George.

Senate Judiciary Committee Chair Arlen Specter said he will ask Alito about the concept of "super precedent", first mentioned by U.S. Court of Appeals Judge for the Fourth Circuit Michael Luttig in 2000 in regard to a partial birth abortion law. Luttig wrote that some Supreme Court rulings are so imbedded in the fabric of the law that a succeeding court cannot invalidate them. Luttig was also on many conservatives’ short list for the O’Connor Supreme Court seat. The idea was laid out in a Sunday New York Times "Week in Review" article October 30^th.

Sugrue said the idea is simply preposterous.

"It’s a trendy idea. It’s an attempt to put a conservative patina on a liberal perspective that would uphold Roe v. Wade," Sugrue said. "It doesn’t have any firm constitutional grounding–it’s a buzz word is all it is."

Some are hoping for an open discussion of abortion as well as judicial philosophy during the confirmation hearings, with Schenck, for instance, saying, "It is high time that this country, in fact the world, confront the reality of the abortion holocaust. It is time we do that openly, honestly–and this nomination could be that occasion."

Brownback also told NPR, "Why is there a litmus test if you’re pro-life, and not if you’re on the other side?"

Others urged caution.

"Roberts was so skillful no one could really lay a glove on him," said Hitchcock. "The new guy is going to go in there hoping to do that."

"I don’t think there would be much for him to be gained in his nomination for him to go into a great deal of depth," Sugrue said. "I think he would give as little information as possible on the specifics of cases."

The son of an Italian immigrant and two public school teachers, Alito is married with two children. He graduated from Princeton University (A.B. 1972), Phi Beta Kappa, and received his law degree from Yale University (J.D. 1975) where was an editor of the Yale Law Journal. He served as a federal prosecutor for ten years before becoming U.S. attorney for the District of New Jersey in 1987. In 1990 the U.S. Senate confirmed Alito by unanimous consent as a judge to U.S. Court of Appeals for the 3rd Circuit.

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Valerie Schmalz is a writer for IgnatiusInsight. She worked as a reporter and editor for The Associated Press, and in print and broadcast media for ten years. She holds a BA in Government from University of San Francisco and a Master of Science from the School of Foreign Service at Georgetown University. She is the former director of Birthright of San Francisco. Valerie and her wonderful husband have four children.

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