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NEWS ANALYSIS

Alito's Record Defies Labels

There's little talk of a filibuster by Democrats, who see no ideological bent in 15 years' worth of legal opinions by the high court nominee.

November 07, 2005|David G. Savage and Maura Reynolds | Times Staff Writers

WASHINGTON — For the second time in three tries, President Bush has found a Supreme Court nominee who does not present an easy target for Senate Democrats.

Although liberal activists are portraying Judge Samuel A. Alito Jr. as a right-wing extremist, his 15 years' worth of legal opinions do not promise fealty to any ideology. Though many of his rulings favor business or prosecutors, they are often narrow -- and a sizable number cut the other way.

Accordingly, Democrats in the Senate are cautious, and there is little or no talk of a filibuster.

"My instinct is that we should commit" to an up-or-down vote, Sen. Joseph R. Biden Jr., a member of the Judiciary Committee, said Sunday on ABC's "This Week." "I think that judgment won't be made until the bulk of us have had a chance to actually see him and speak to him. But I think the probability is that [such a vote] will happen."

Democratic staffers who have been reading Alito's opinions acknowledge that they do not read like the work of a right-wing ideologue.

"He isn't Robert Bork," said a top aide to a Democrat on the Senate Judiciary Committee, who spoke of the internal discussions on the condition that he not be identified. "He doesn't have sharp elbows in his opinions. He seldom attacks or says the other side is wrong. He just says, 'Here's a better argument.' That's different."

A similar dilemma confronted liberals during the summer. John G. Roberts Jr., Bush's first nominee and now the chief justice, had a long record as a lawyer arguing before the Supreme Court; some clients were liberal and some conservative. His only brashly conservative comments came in memos he wrote as a young lawyer in the Reagan administration.

Alito, who was nominated Nov. 1, has a much longer public record -- including more than 300 opinions from his years on the U.S. 3rd Circuit Court of Appeals in Philadelphia -- but he appears to have even fewer sharp-edged comments on highly charged issues. His legal opinions carefully explain the facts and the law. He shuns broad pronouncements. And the results do not fit into a clearly conservative mold.

Some recent examples:

* In February, Alito wrote an opinion that reopened the case of a black murder defendant in Pennsylvania because the prosecutor had removed 13 of 14 blacks from the jury pool. This strongly suggests racial bias had infected the trial, Alito said.

* Last fall, overturning a federal judge, Alito ordered a school district to allow an emotionally troubled New Jersey boy to transfer from a school where he was harassed by "bullies" who called him fat and "queer" and threw rocks at him outside class. Alito said school officials had ignored the effect of "the severe and prolonged harassment" on the young man.

* In April, he spoke for the appeals court in reopening the asylum request of a Chinese woman who showed evidence she had been forced to have an abortion before fleeing China.

* In September, Alito ruled for public housing tenants in Philadelphia who said officials had violated their contract by raising their gas rates during the year.

Liberal critics have focused attention on three Alito rulings involving abortion, gun control and search and seizure to make the case that he is an extremist.

On abortion, for example, he wrote a well-publicized dissent in 1991 saying the court should have upheld a Pennsylvania law that generally required married women to tell their husbands when they were going to get an abortion. He did so in attempting to interpret Supreme Court Justice Sandra Day O'Connor's view that most regulations of abortion do not put an "undue burden" on women. However, when the case reached the high court, O'Connor said a regulation requiring women to notify their husbands did put an undue burden on them.

But four years later, Alito cast the deciding vote to make it easier for poor women to obtain a government-funded abortion. The Clinton administration had told state officials that they must pay for abortions under the Medicaid program if a woman was a victim of rape or incest. Pennsylvania officials said they would not do so unless the women had reported the crime to authorities. In a 2-1 decision, Alito and another judge adopted the Clinton administration's view, not Pennsylvania's.

In 1996, Alito was in the minority when he voted to throw out the conviction of Richard Rybar, a Pennsylvania man found guilty of "unlawful possession" of a machine gun, a federal offense.

"The machine gun case is quite arguably where this nominee shows his most profound break with reasonableness," said Peter Hamm, a spokesman for the Brady Campaign to Prevent Gun Violence. "On this issue, Judge Alito is far outside the mainstream."

But Alito's opinion was based not on the merits of possessing a machine gun, but on his contention that Congress was not authorized to outlaw possession of a gun because mere "possession" did not involve interstate commerce.

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