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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 nations
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 questionssuch 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. Bushs 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
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 Alitos
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 Bushs judicial opponents to the
"Its 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 27th. "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 OConnor, 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
OConnor 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 Alitos 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
"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,
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.
Alitos 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 daypartial 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 Jerseys partial birth abortion ban, saying it was similar
to the Nebraska ban ruled unconstitutional by the Supreme Court, George
"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,"
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 OConnor Supreme Court seat. The idea was laid
out in a Sunday New York Times "Week in Review" article
Sugrue said the idea is simply preposterous.
"Its a trendy idea. Its an attempt to put a conservative
patina on a liberal perspective that would uphold Roe v. Wade,"
Sugrue said. "It doesnt have any firm constitutional groundingits
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, honestlyand
this nomination could be that occasion."
Brownback also told NPR, "Why is there a litmus test if youre
pro-life, and not if youre 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
"I dont 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
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
Comment on this article
at the Insight Scoop web log.
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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