Judge Samuel Alito holds the distinction of being the second choice of both President Bush, who preferred Harriet Miers, and Bush’s conservative base, which preferred Judges Edith Jones or Janice Rogers Brown. But Judge Alito is not the second or any choice of many Democrats, who have threatened to block a vote on his confirmation.
Everyone is poring over the 807 opinions written by Judge Alito during his 15-year tenure on the Court of Appeals for the Third Circuit, which hears cases in Philadelphia. Judge Alito was raised and resides in New Jersey, one of the most liberal states in the Nation.
It is possible to predict with some accuracy the future rulings of a nominated Supreme Court Justice by reviewing his writings and comments, and noting what he has said and not said. Justices Scalia, Thomas, Ginsburg and Breyer have turned out almost exactly as their supporters and opponents predicted. Justice Souter seemed to have changed near the end of his first year on the High Court, but astute observers predicted that he would become a liberal justice. Justice Kennedy has, with a few notable exceptions, ruled as predicted.
The Supreme Court is dedicated to interpreting and applying the Constitution and, to a lesser extent, federal laws. This Court hears only about 75 cases a year, the vast majority of which are insignificant to the American public. Obscure issues of prisoner rights and business conflicts consume much of the Court’s time. Those cases are not what attract so much public attention to the confirmation process by which the Senate decides whether to approve the President’s selection to fill a new Supreme Court vacancy. Here, because Judge Alito has been nominated to fill the seat of the Justice Sandra Day O’Connor, his vote could become the “swing” fifth vote in crucial 5-4 decisions.
The biggest issue in the eyes of the media and many court-watchers is abortion, which Justice Thomas recently observed has tied up in knots the confirmation process for new Supreme Court Justices. Every few years there is a big case before the Supreme Court concerning abortion, which eclipses all other cases on its docket in terms of public attention and controversy. Senators will badger Judge Alito about the issue of abortion, far more than any other issue, during confirmation hearings. At least 22 Democratic Senators (the number who voted against the confirmation of Chief Justice Roberts) can be expected to try to block confirmation of any Justice they suspect, or the abortion industry expects, might rule against their favorite operation.
Judge Alito could very well become the swing or decisive fifth vote on the matter of the federal prohibition of partial-birth abortion, as well as countless state regulations against abortion. To preserve his impartiality and avoid sparking a filibuster, he is likely to refuse to answer any questions about abortion. Instead, we are left to rely on his 807 opinions, and on his personality and susceptibility to peer pressure, to predict how he would rule.
The starting point is to inquire whether Judge Alito ever cited Roe v. Wade, the decision that legalized abortion and is often praised by liberals. Judge Alito has not cited that decision once in his 807 opinions. That, in itself, is a remarkable omission that strongly suggests his disagreement with the decision and his likely feeling that one day it will be overturned. By way of comparison, liberal Justice Reinhardt has cited Roe v. Wade (1973) about a half-dozen times in 1202 opinions.
Nearly twenty years after Roe was decided, the Supreme Court had the opportunity to reconsider it in a case called Planned Parenthood v. Casey (1992). Flanked by four justices who would have overturned Roe (Rehnquist, Scalia, Thomas and White) and two justices who wanted Roe affirmed and protected forever (Stevens and Blackmun), three Justices (O’Connor, Kennedy and Souter) wrote a decision allowing only limited types of state regulations against abortion. Yet Judge Alito has never cited that decision with respect to its abortion ruling.
That case reached the Supreme Court on appeal from the Court of Appeals for the Third Circuit, where Judge Alito sits. He wrote an opinion in that case expressing his support for a state law requiring a wife to notify her husband before having an abortion. Judge Alito wrote that “economic constraints, future plans, or the husbands’ previously expressed opposition may be obviated by discussion prior to the abortion.” Planned Parenthood v. Casey, 947 F.2d 682 (3rd Cir. 1991). But he stood alone in dissent in expressing this view. On appeal, four Supreme Court Justices quoted him rather than expressing the same view in their own words.
Eight years later, the Supreme Court struck down a state law prohibiting partial-birth abortion in Stenberg v. Carhart (2000). That decision was rendered while Judge Alito was part of a three-judge panel presiding over a challenge to a similar New Jersey law against partial-birth abortion.
The New Jersey case was argued in November 1999, as the brilliant attorney Rich Collier defended the law on behalf of the New Jersey legislature. Ordinarily a decision would be rendered within a few months. But evidently there was a disagreement on the panel between Judge Alito and the two other judges, who wanted to invalidate the law and allow partial-birth abortion. These two other judges wrote a lengthy opinion in favor of unregulated abortion, citing Roe v. Wade with approval more than once. Judge Alito may have been drafting a dissent when the Supreme Court issued its shocking decision in Stenberg v. Carhart on June 28, 2000.
The Supreme Court decision held in favor of partial-birth abortion by a 5-4 margin. This required Judge Alito to discard whatever he had written and to write separately in light of the new Supreme Court decision. Abiding by the widely-accepted rule that lower courts must follow the holdings of the Supreme Court, Judge Alito wrote that the New Jersey statute was like the Nebraska statute just invalidated by the Supreme Court. So the New Jersey statute must be struck down just as the Nebraska statute had been. Judge Alito’s narrow opinion left unanswered how he would rule as a Supreme Court Justice on the issue of abortion.
While conservatives were pleased that Judge Alito criticized the majority decision in favor of partial-birth abortion, they were disappointed that he accepted and applied the holding of the Supreme Court. For better or worse, however, virtually no other judge would repudiate a Supreme Court decision within a month of its issuance. The federal judiciary can only operate on the principle that lower courts obey the Supreme Court, particularly when so close in timing. There are many conservative rulings of the Supreme Court that would be completely ineffective if lower courts were free to disobey them. For example, the Supreme Court ruled that the Boy Scouts need not allow homosexual scout leaders. If lower courts were free to disobey that decision, then the Boy Scouts would be subject to countless, debilitating lawsuits around the country even after winning their case before the Supreme Court.
As with many other potential nominees to the Supreme Court, including recently confirmed Chief Justice Roberts, Judge Alito’s views about abortion are unclear, and we must infer his views from his opinions on other attempts to regulate public morality.
At least nine times out of ten, a judge’s view on morality in public school is indicative of his view on abortion. Both issues boil down to the power of government to preserve or promote a moral society.
Judge Alito was one of only two judges who stood up for Zachary Hood, a kindergarten student subjected to the anti-religious hostility that permeates public schools. Zachary’s teacher asked the class to draw posters about what they were “thankful for.” Zachary’s poster showed how he was thankful for Jesus. But when his poster was displayed along the wall along with all the other students, school officials took Zachary’s down and only later did they restore it to a less prominent position. C.H. v. Oliva, 226 F.3d 198 (3d Cir. 2000). Judge Alito sided with the student’s religious drawing.
Judge Alito has repeatedly held in favor of displays containing religious imagery, most notably when he held in 2001 that taxpayers lacked standing to challenge a display that had been donated to the town. He added that even if the display were funded at taxpayer expense, the expenditure would have been de minimis and standing would be lacking. Aclu-Nj v. Wall Aclu-Nj, 246 F.3d 258 (3rd Cir. 2001). Judge Alito’s opinion in this case hints at his potential, as he went further than any current Supreme Court Justice has towards stopping these abusive lawsuits by the ACLU. Not only did Judge Alito hold in favor of the display, but his reasoning would immediately stop many liberal lawsuits at the courtroom door.
Judge Alito has overruled the Bush Administration on the issue of forced abortions in China. An immigration judge had held that “there is nothing really in the State Department’s Profile that would lead us to believe that forced abortions are anything other than a very rare exception,” and had denied a request for asylum. But Judge Alito discredited a pro-China assessment by the State Department and found that the woman had undergone a forced abortion and was entitled to a fair hearing on her asylum request. Xiu Ling Zhang v. Gonzales, 405 F.3d 150 (3rd Cir. 2005). In another case Judge Alito did allow the deportation to China of a man who tried to raise this issue, but he was not married to the woman allegedly threatened with an abortion and the facts could have been contrived.
Many of the controversial issues before the Supreme Court, including abortion and same-sex marriage, are part of the radical feminist agenda. Would a Justice Alito buckle under to feminist pressure? The current Supreme Court is very weak against feminists, as no Justice has ever stood up to the feminists and the late Chief Justice Rehnquist even embraced feminist language about “stereotypical” roles for the sexes. But in a claim for asylum by a women claiming to be a feminist, Judge Alito denied the request. The woman in the case defined “feminism” as “equal rights for women,” and wanted the court to block her deportation back to Iran. Judge Alito held that “the administrative record does not establish that Iranian feminists are generally subjected to treatment so harsh that it may accurately be described as ‘persecution.’” Fatin v. INS, 12 F.3d 1233, 1242-43 (3rd Cir. 1993). Judge Alito then added a key observation, suggesting that inequality between men and women may sometimes be desired by women. “Presumably, there are devout Shi’ite women in Iran who find this requirement [for women to wear veils] entirely appropriate.” Id. at 1242. Alito’s complete repudiation of the feminist arguments in this case is superior to anything a current Supreme Court Justice has written.
Judge Alito has also shown a promising ability to persuade liberals to join his conservative decisions. In Saxe v. State College Area Sch. Dist., 240 F.3d 200 (3rd Cir. 2001), he was on a panel considering an appeal by Christians of a pro-gay, anti-harassment school code prohibiting “unwelcome verbal … conduct” with respect to sexual orientation. Not only did Judge Alito reverse the district court and invalidate the speech code, but he also persuaded the other judges on his panel to agree. Judge Alito, having served for 15 years on a liberal Circuit, has developed an ability to persuade that is superior to any conservative on the Supreme Court. Some of his cautious decisions may simply reflect his desire to save his firepower for a better day.
In terms of personal background, everything about Judge Alito suggests he would be immune to the liberal media pressures that have moved several Supreme Court Justices to the Left in the past, such as Stevens, Blackmun, Kennedy and Souter. Unlike several of those Justices, Judge Alito cannot be ridiculed for intellectual shortcomings and pressured to move Left to avoid mockery, as his expertise and capability are as strong as that of any Supreme Court Justice. His solid family background and scholarly interests should also insulate him against pressures. Though Judge Alito is cautious and has not exhibited much leadership, his record suggests he may be as good or even better than nearly all the sitting Supreme Court Justices. He was not conservatives’ first choice, but it is difficult to name many other federal judges who would be better.
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