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Court Nominee Has Free-Market Bent

Bush's choice to replace retiring Justice Sandra Day O'Connor has a pro-business record.

November 01, 2005|Molly Selvin | Times Staff Writer

Although Samuel A. Alito Jr. has spent his entire legal career on the government payroll, President Bush's nominee to the U.S. Supreme Court has a strong free-market philosophy likely to please corporate America, legal experts said Monday.

In decisions he has written since joining the U.S. 3rd Circuit Court of Appeals in 1990, Alito has shown a libertarian streak, often expressing skepticism about government regulation of business:

* As the sole dissenter in a 1996 case involving a female hotel employee who had complained of sexual harassment, Alito advocated setting a higher hurdle than other courts have required for bringing a sex-discrimination claim.

* In a 2002 opinion from a suit pitting a transparent-tape maker against Scotch brand giant 3M, Alito opposed federal rules against anti-competitive practices.

* Writing for the majority in a 2000 suit brought by a Pennsylvania state employee who was fired after taking unpaid sick leave, Alito said Congress went too far in passing the Family and Medical Leave Act.

"Alito gives every indication that he will be a strong ally for business interests on the court," said Jonathan Turley, a professor at George Washington University Law School. "He will be swimming in the deep right of the court's pool on business questions."

Bush nominated Alito on Monday to replace retiring Justice Sandra Day O'Connor. The 55-year-old New Jersey native was a federal prosecutor and an assistant to the U.S. solicitor general before joining the federal bench.

Alito has not worked in private practice or business -- a fact that Ted Frank, resident fellow at the American Enterprise Institute, said was surprising.

"You don't expect someone with a purely government background to have this sort of sensitivity in business cases," he said. "I'm very encouraged."

Labor advocates were not as pleased. Alito's decisions "repeatedly put basic rights at risk," AFL-CIO President John J. Sweeney said in a statement.

Among Alito's rulings affecting business are a number of cases in which he favored employers and endorsed a narrow view of government's role in business affairs.

In one, for example, hotel employee Barbara Sheridan said she was demoted after she complained of sexual harassment after receiving steady promotions and strong performance reviews for a decade. The circuit court denied the hotel's request for an order blocking a trial, but Alito dissented.

For a jury to hear job discrimination cases, Alito wrote, plaintiffs such as Sheridan must present evidence that no other explanation accounts for the alleged bias.

Frank of the enterprise institute applauded this decision.

"If an employee can pull an employer into court on a semblance of evidence, it can force a settlement," he said. "Even if you win, you lose."

In the tape dispute, stationery products maker LePage's alleged that rival 3M offered large clients rebates that violated federal antitrust laws. Alito, writing for the majority on a three-judge panel, reversed the District Court's verdict for LePage's, holding that because the plaintiff had not presented evidence that 3M's pricing was below cost there was no violation of U.S. law.

The full circuit later overruled that decision, holding that evidence of 3M's exclusive dealing and bundled rebates alone was sufficient to sustain charges of monopolistic practices.

In the family leave case, Alito wrote that Congress could not force Pennsylvania to comply with the law. The case involved a state employee who took unpaid sick leave, as permitted by the federal act.

The Supreme Court later reached the opposite conclusion in a Nevada case, ruling that the federal law did apply to state workers.

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