New Jersey Law Journal By Henry Gottlieb November 2, 2005
http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1130943234752
NEWARK, N.J. — When Ward Coffee Co. near Samuel Alito Jr.'s chambers in Newark, N.J., named a designer espresso "Judge Alito's Bold Justice Blend," his law clerk joked that the "bold" referred to both the coffee and the judge.
Five years later, the blend of Java, Celebes and New Guinea beans remains a best- seller. But will the Senate and the American public buy the brand of bold conservativism Alito displayed in 300 majority opinions and dissents in his 15 years on the Third Circuit U.S. Court of Appeals?
A quick examination of those opinions leaves no doubt that the 55-year-old judge President Bush nominated on Monday to replace centrist Justice Sandra Day O'Connor has a record to satisfy Bush's constituents on the right. On abortion, employee and criminal defendant rights, First Amendment and business issues, Alito has landed, consistently, on the conservative side.
At the same time, his Ivy League credentials, reputation for brilliance, and an ability to spend 25 years in public life without an apparent blemish seem to make him a compelling candidate.
Critics comparing Alito with another conservative justice of Italian descent — Antonin Scalia — have called him "Scalito" or "Scalia-Lite." "Chiefalito" lacks euphony, but is more apt, stylistically at least, according to lawyers who know Alito and say his temperament is less like Scalia's and more like Chief Justice William Rehnquist's and his successor, John Roberts.
"I defy anybody to say anything bad about Sam's private and professional character," says Michael Gilberti, a federal prosecutor turned criminal defense lawyer who has known Alito since 1980.
But Gilberti speaks for Alito's legion of liberal friends when he says, "I'm a little intimidated by what he might do."
He adds: "I think there are certain issues like abortion where he will erode or try to erode through a conservative approach," Gilberti says.
The Alito opinion that has received the most publicity since his nomination is his dissent in an abortion case that went to the Supreme Court as Planned Parenthood v. Casey, 505 U.S. 833 (1992). The Third Circuit majority struck down a Pennsylvania law requiring women seeking abortions to notify their spouses.
The Supreme Court narrowly affirmed the decision. Had Alito been a justice, he would have sided with Rehnquist, Scalia, Byron White and Clarence Thomas in a dissent that said the notification requirement was not an undue burden on the woman and passed constitutional muster.
Strict anti-abortionists, on the other hand, disagreed with an opinion Alito joined, Planned Parenthood v. Farmer, 220 F.3d 127 (2000), that followed Supreme Court doctrine and struck down a New Jersey law banning late-term abortions.
The chairman of the Senate Judiciary Committee, Arlen Specter, R-Pa., said on Monday after meeting the nominee that Alito, like Roberts during confirmation hearings in September, reaffirmed the principle of stare decisis and recognized the rights to privacy as outlined in Griswold v. Connecticut, 381 U.S. 479 (1965), an underpinning of Supreme Court decisions allowing abortions.
Alito has been consistent in championing the rights of individuals and institutions to take part in religious activities in cases in which the establishment clause of the First Amendment and freedom of expression were at issue.
In ACLU v. Schundler, F.3d 92 (1999), his majority opinion said a holiday display in Jersey City did not violate the establishment clause because it included nonreligious symbols like snowmen and a banner hailing diversity, in addition to a nativity scene and a menorah.
In Fraternal Order of Police, 170 F.3d 359 (1999), he wrote a majority opinion that said Newark could not, on grounds of uniformity, ban the wearing of beards by Muslim police officers.
C.H. v. Oliva, 226 F.3d 198 (2001), was a case that pitted two conservative ideals against each other: the right to religious expression in schools and the right of schools to limit free speech. Alito championed religious expression in a dissent championing the right of a student to have his drawing of Jesus in a Thanksgiving display.
He wrote for the majority in Child Evangelism Fellowship of N.J. v. Stafford Township School, 386 F.3d 514 (2004), that preventing a Bible study group from setting up an informational table at a back-to-school night was viewpoint discrimination.
In another case on the conservative-liberal dividing line, he wrote in a dissent in U.S. v. Rybar, 103 F.3d 273 (1996), that a ban on private ownership of machine guns was not a valid exercise of congressional power to regulate interstate commerce.
DUE DEFERENCE
For the most part, Alito has tended toward deference to decision-making by the police and federal rule-makers in criminal and regulatory cases.
In a dissent that disagreed with the reversal of a drug conviction, U.S. v. Russell, 134 F.3d 171 (1998), he came down on the side of caution in findings of plain error by appeals courts.
In a case on the effectiveness of counsel in death penalty cases, Rompilla v. Beard, 355 F.3d. 233 (2004), Alito wrote for the majority in affirming a sentence handed down after the defense lawyer failed to review records that might have helped mitigate the sentence. The 5-4 vote by the Supreme Court in June to reverse Alito's decision demonstrates what is at stake in Alito's nomination.
In a dissent in a race discrimination employment case, Bray v. Marriott Hotels, 110 F.3d 986 (1997), he railed against pro-employee summary judgment standards that allowed claims to survive when a plaintiff could show minor inconsistencies or discrepancies in an employer's adherence to internal procedures.
"He's very conservative," says Lawrence Lustberg, a criminal defense lawyer who has handled cases for the American Civil Liberties Union and spent a summer interning in the U.S. attorney's office in Newark when Alito was an assistant.
"I don't believe he is going to be a Scalia kind of guy," Lustberg said. "Scalia is a revolutionary judge. He tries to move the law along with broad strokes. Sam has too much respect for stare decisis and the rule of law. He's going to move things little by little with well savvily crafty decisions.
"This is a debate over whether we want to move this court to the right, because he is going to move this court to the right," Lustberg says.
And Lustberg predicts Alito will be confirmed. "He's going to wow the Judiciary Committee. He's going to be every bit as impressive as John Roberts in his own soft-spoken way."
Henry Gottlieb is a reporter with a Recorder affiliate based in Newark, N.J.
This email was cleaned by emailStripper, available for free from http://www.papercut.biz/emailStripper.htm