The Supremes

By MARY DEIBEL

To most Americans, Samuel Alito remains as much a "stealth" candidate for Supreme Court as he was the day that President Bush named him to replace the retiring Sandra Day O’Connor, the justice at the center of a deeply divided court.

But Alito’s work on the federal bench for 15 years, and as a Reagan Justice Department official before that, read large on the radar screen of the Bush White House and its outside advisers.

Since Bush tapped Alito Oct. 31, outside groups and senators across the political spectrum have scrutinized the 370 opinions he has written on the Philadelphia-based 3rd U.S. Circuit Court of Appeals and his earlier work as an assistant U.S. attorney general.

The 600-pageWhite House briefing book on Alito calls him a "mainstream" judge, and conservative groups say they agree.

As head of two outside groups working to confirm judges for Bush, Boston University law school dean emeritus Ronald Cass cites the American Bar Association’s highest "well qualified" rating for Alito as evidence that his opponents "are the ones who are out of the mainstream."

Others suggest Alito is far more conservative than supporters paint him:

Cass Sunstein, a University of Chicago professor and author of "Radicals in Robes," says his study of Alito’s 80 appeals court dissents finds he’s 91 percent more conservative than other appellate judges, including appointees of Ronald Reagan and the Bushes, father and son.

Conservative lawyer Bruce Fein, a Reagan Justice Department colleague of Alito, calls it "disingenuous" to liken Alito’s track record to O’Connor’s on such hot-button issues as abortion, affirmative action and church-state separation. Alito’s backers "are tying to portray him as something he’s not," Fein complains.

That’s why senators will closely question Alito about the following key entries in his long paper trail when Senate confirmation hearings start Monday. The hearings begin with a new Harris poll showing a third of the public supporting confirmation, a third opposing it and a third wanting to know more.

ABORTION: Alito assured Senate Judiciary Chairman Arlen Specter, R-Pa., in advance of the hearings that his personal views on abortion "would not be a factor" if the Senate confirms him to the Supreme Court.

Before now, Alito most clearly outlined his views on Roe v. Wade, the landmark 1973 Supreme Court ruling that made abortion a nationwide constitutional right, in a pair of 1985 memos he wrote as a Reagan Justice Department attorney:

In his 1985 application for promotion from Justice Department career lawyer to a political post, Alito said he was "particularly proud" to contribute to administration court arguments that the "Constitution does not protect a right to an abortion."

The second 1985 memo urged the solicitor general to ask the Supreme Court to allow incremental state restrictions on abortion. To Alito, this should be part of a long-term strategy "to advance ... the eventual overruling of Roe v. Wade, and in the meantime, of mitigating its effects."

Alito’s 3rd Circuit dissent in Planned Parenthood v. Casey also got the Supreme Court’s attention in 1992: In that 5-4 decision, the Supreme Court used the Casey case to reaffirm the core holding in Roe v. Wade legalizing abortion and to adopt O’Connor’s test that restrictions mustn’t impose an "undue burden" on abortion rights.

The Casey case upheld some Pennsylvania restrictions but struck down the requirement that a woman notify her husband in advance because of the danger to victims of spousal abuse. In his 3rd Circuit dissent, Alito said spousal notification isn’t an undue burden because it doesn’t affect most women.

EXECUTIVE POWER: President Bush’s expansive view of his constitutional powers post-9/11 will be a lightning rod for the Senate Judiciary Committee even though Alito hasn’t ruled on touchy war-on-terror issues. Two reasons for Senate interest:

Alito used a 2000 speech to the Federalist Society to advance a far-reaching theory of presidential authority. According to him, under the Constitution, "The president has not just some executive powers, but has the executive power _ the whole thing."

O’Connor, the justice Alito would replace, rejected Bush’s claim that he has the power to indefinitely detain anyone he designates an enemy combatant in a 2004 decision holding that a "state of war is not a blank check for the president."

Given Bush’s order for warrantless domestic surveillance, a 1984 Alito Justice Department memo also has taken on added importance. The memo argued that former Attorney General John Mitchell should be shielded from suit by the target of a 1972 wiretap later judged unconstitutional.

Alito critics suggest the memo could indicate thinking on Bush’s claim that he has inherent constitutional authority to eavesdrop on Americans. Alito’s memo doesn’t address the legality of wiretapping, however, but the circumstances in which a target of illegal surveillance has legal recourse against responsible officials.

Where executive power involves police, prosecutors and the like, Sunstein reports that Alito tends "with striking regularity" to defer to "established institutions ... (and his opinions) do not show a flamboyant judge seeking to revolutionize the law."

A case in point: In Doe v. Groody (2004), 3rd Circuit dissenter Alito said a police officer couldn’t be sued for strip-searching a 10-year-old girl even though she wasn’t named in the warrant. Alito said the officer reasonably believed he had permission to search her.

CONGRESSIONAL POWER: Alito’s opinion in United States v. Rybar (1996) should be a Senate sore point: He said Congress’ constitutional powers "to regulate Commerce ... among the several states" doesn’t include regulation of machine guns, a departure from every federal appeals court to address the question.

Congressional authority to regulate guns or anything else has been a raging controversy since the Supreme Court decided U.S. v. Lopez in 1995, a 5-4 ruling invalidating the Gun-Free Schools Act for exceeding Congress’ commerce powers.

Lopez was the first of 34 Supreme Court 5-4 rulings since 1995 to strike down acts of Congress on commerce-clause or states’-rights grounds. In each, O’Connor was the tiebreaker.

She also was in the 6-3 majority in Nevada v. Hibbs (2003), finding that Congress made its case for covering state government under the Family and Medical Leave Act. Alito voted to overturn that same law as a congressional overreach in Chichester v. Pa. Department of Community and Economic Development two years before.

AFFIRMATIVE ACTION: Here, too, O’Connor’s vote has been key, most recently in her 5-4 decision in Grutter v. Bollinger (2003) upholding continued use of race as one of many factors in college admissions.

In his 1985 job-application memo to then-Attorney General Edwin Meese, now a top outside adviser to Bush on judgeships, Alito wrote he was "particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed."

In 1997, Alito and the 3rd Circuit upheld a white teacher’s reverse-bias lawsuit against the Piscataway, N.J., school board for firing her instead of a black teacher with identical qualifications when budget cuts forced layoffs. The Supreme Court took the case to refine prior rulings on affirmative action in employment, but civil rights groups settled rather than risk a potential Supreme Court loss.

Senators also will question Alito about his membership in Concerned Alumni of Princeton, a 1970s group that fought the admission of women.

On the separate issue of employment discrimination, critics say Alito’s 3rd Circuit opinions in Sheridan v. Du Pont Co. (1996) and Bray v. Marriott Hotels (1997) took a tough approach toward letting workers bring job bias complaints.

VOTING RIGHTS: With O’Connor the court lynchpin on political remaps, senators will quiz Alito on voting rights and redistricting.

Alito has little judicial history on this topic but, on that same 1985 Justice Department job application, he wrote of his "deep interest in constitutional law motivated in large part by disagreement with Warren Court decisions, particularly ... reapportionment."

The 1960s Warren court landmark decisions central to his disagreement presumably start with Baker v. Carr (1963) and subsequent rulings that established the constitutional principle of "one person, one vote."

Sen. Joe Biden, D-Del., says Alito’s redistricting answers may be more important to his judicial promotion than abortion, especially when the Supreme Court has agreed to consider Texas’ 2003 congressional remap. That redistricting, tied to Texas Rep. Tom DeLay’s money-laundering indictment and loss of his House Republican leader’s post, gave Republicans five more seats in Congress and solidified GOP control.

CRIMINAL LAW: In 15 years on the 3rd Circuit, Alito has sided overwhelmingly with government prosecutors and against the accused, according to analyses of his voting patterns in criminal cases by The Washington Post and others.

His dissent refusing to overturn the death sentence of Ronald Rompilla has drawn special attention. Rompilla claimed he was represented by incompetent counsel who failed to investigate or present any evidence that his parents tortured him as a child and that he suffered organic brain dysfunction because of fetal alcohol syndrome. The Supreme Court voted 5-4 last term to overturn Rompilla’s death sentence, with O’Connor as tie-breaker.

A1984 Justice Department memo by Alito also has drawn attention: In it he said he saw no constitutional problem with police shooting to kill an unarmed teen seen fleeing the site of a $10 Memphis home burglary, calling the shooting "reasonable." The Supreme Court used the case, Tennessee v. Garner (1985), to set a bright-line rule nationwide forbidding routine police use of deadly force against fleeing suspects who pose no danger.

CHURCH-STATE: Alito’s appeals court votes on church-state issues follow the Supreme Court’s "reindeer test" that allows public displays of sacred items so long as they appear alongside their secular counterparts.

In ACLU of New Jersey v. Schundler (1999), Alito and the 3rd Circuit upheld a Jersey City, N.J., holiday display against an Establishment Clause challenge because it featured a creche and menorah along with Santa and Frosty the Snowman.

But Alito dissented in ACLU of New Jersey v. Black Horse Pike Regional Board of Education (1995), arguing that prayer at public high school graduations doesn’t violate the Establishment Clause if students vote to have a prayer and offer it themselves. The Supreme Court subsequently struck down such prayers at public-school graduation and football games for unconstitutionally compelling students against conscience.

Separately, Alito voted in Fraternal Order of Police v. Newark (1999) that the Newark police department’s refusal to let Muslim officers wear beards for religious reasons violates the Free Exercise clause of the First Amendment to the Constitution.

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