How Alito Looks Under the Lens

By Daniel Eisenberg

Like any half-decent Hollywood thriller, every serious political brawl in Washington needs at least one good villain. It's not nearly as much fun or as easy to score points and hurl invective back and forth without a compelling one-dimensional character at the center of it all. Robert Bork played that role magnificently in his 1987 epic Supreme Court battle, as did Clarence Thomas in his more understated performance four years later. More recently, during the bloody conservative revolt over the Supreme Court nomination of White House counsel Harriet Miers, the real villain turned out to be her chief backer, a President who dared tell his loyal base to just trust him on this one.

So Democrats can be forgiven for appearing a bit downcast in the days following the introduction of Bush's newest nominee, Federal Appeals Court Judge Samuel Alito Jr., 55. The Princeton and Yale Law--educated career public servant may have the most solid conservative judicial record of any Supreme Court nominee since Bork. It's more than enough to satisfy most Republicans looking for as close to a sure thing as possible on hot-button issues like abortion, the death penalty and the roles of religion and race in American society. But like John Roberts, the Bush Supreme Court nominee who sailed through confirmation hearings in September, the unassuming, affable Alito is far from the partisan flamethrower Democrats were itching to fight over.

The fact that so many in the legal community, on both sides of the political aisle, laud Alito as a serious, fair legal thinker not given to overarching theories or ideological tantrums is bad enough for the Democrats. And his record of protecting freedom of expression doesn't help matters. Also, it's pretty hard to demonize a man who regularly donned a uniform when coaching Little League and once spent a week of vacation at the Philadelphia Phillies fantasy baseball camp. The White House, says Democratic strategist Joel Johnson, "has accomplished the task of getting beyond the base problem in a way that has not completely lit the opposition on fire." A disappointed Democrat summed up the problem this way: "He's a nice guy, and he doesn't drool."

That doesn't mean some sort of battle won't be waged, especially now that both sides have two months before Alito's confirmation hearings begin in early January. On the contrary. Far from a stealth candidate like Miers, who only a month ago was being praised by Bush for not being from the "judicial monastery," Alito has "more prior judicial experience than any Supreme Court nominee in more than 70 years," as the President noted. Alito's voluminous record, including some 300 opinions, offers a wealth of material for both sides to pick over. Within days of his nomination, his dissent argument for upholding a Pennsylvania law requiring a woman to notify her husband before having an abortion and his opinion supporting a city hall religious-holiday display had become some of the reasons to set up the barricades.

THE BATTLE STATIONS

Activist groups have been filling their coffers for years in anticipation of just such a high-stakes face-off. Now, with the swing vote of retiring Justice Sandra Day O'Connor hanging in the balance, they have no intention of saving it for a rainy day. Soon after the choice of Alito was announced, the organization Progress for America launched a $425,000 one-week media campaign in support of the nominee. The liberal group People for the American Way is starting a slow rollout of its own spate of anti-Alito commercials, the fastest it has ever started a campaign after the selection of a new nominee. It expects to spend, along with its allies, several million dollars painting Alito as a right-wing judicial activist who will continue to chip away at or perhaps even overturn the right to an abortion; roll back civil rights and liberties, especially in the realms of race and gender discrimination and crime and punishment; and permit religion to encroach into the secular arena. In a moment of surprising candor, Alito provided new fodder for his critics last week, telling Senators that the high court may have gone too far in recent years in keeping the church out of public life.

Still, for the moment, most politicians and activists on the left are keeping their powder dry, trying their best to express reservations about Alito without lashing out and sounding shrill. Absent a number of Republican defections, the Democrats will be unable to block Alito unless they resort to a filibuster that will prolong debate and prevent a full vote. And if they go that route, many Republicans have vowed to pursue the "nuclear option"--using a simple majority to pass a rule ending filibusters for judicial nominations.

As remote a possibility as that scenario now seems, it is enough of a threat that the Bush Administration has taken an unprecedented approach to selling Alito. Instead of first focusing on potential liberal opponents on the Senate Judiciary Committee like Ted Kennedy and Joseph Biden, Alito made many of his initial courtesy calls on more moderate Democrats, some of whom are members of the Gang of 14. That coalition of Democrats and Republicans banded together to prevent an escalation to a filibuster--nuclear-option scenario during the battles over federal appeals-court nominees earlier this year, and they met last week to affirm their belief that only "extraordinary circumstances" would justify a judicial filibuster. If at least five Senators from relatively conservative so-called red states--like Mark Pryor of Arkansas and Ben Nelson of Nebraska--can be convinced that Alito is not outside the mainstream, the thinking goes, then any chance of a filibuster would be off the table.

THE ANTI-SCALIA?

Because they are both Catholic, Italian-American conservative federal judges who hail from Trenton, N.J., Alito and Supreme Court Justice Antonin Scalia have often been viewed as brothers in arms--so much so that Alito earned the nickname Scalito among many court watchers. But the comparison is misleading. Throughout Alito's career--from his time as an Assistant Solicitor General and Deputy Assistant Attorney General in the Reagan Administration to his three years as a federal prosecutor in New Jersey to the past 15 years as a Newark-based judge on the Third Circuit Appeals Court--he has earned a reputation as the antithesis of the brash, grating Scalia. "He's conservative, but he's not a zealot at all," says Paul Fishman, a Democrat and attorney from New York City, who worked under Alito at the U.S. Attorney's office in New Jersey, when Alito strove to put away corrupt politicians and drug dealers--all while wooing his future wife Martha-Ann, a research librarian in the same office. (The couple have two children, a son, 19, and a daughter, 17.)

His former clerks and colleagues talk of Alito's quiet modesty and unfailing politeness, whether with interns or lawyers arguing cases in front of him. "He'll ask very penetrating questions, not to demonstrate his intellect, as some judges do, but to penetrate your thoughts," says veteran New Jersey attorney Donald Robinson. More important, those same people testify to Alito's methodical, open-minded approach to deciding cases, one free of dogma and much passion, for that matter. Not only is Alito very careful to follow existing precedent--as he did in invalidating a statute restricting late-term abortions that didn't include an exception for the health of the mother--but he has also shown he is capable of seeing two sides of any case. "It's very clear that in engaging cases he wouldn't start with the result and work his way backwards," says Michael Stein, a visiting professor at Harvard Law School who clerked for Alito from 1990 to 1991. In the case of an Iranian woman seeking political asylum in 1993 because of her feminist views, Alito affirmed that feminist opinions in general could constitute political statements for which a woman could reasonably fear persecution. But he rejected her bid for asylum, ruling that she did not prove she would be singled out for her beliefs.

There is another, less flattering way to characterize that kind of approach: Alito can be seen as overly focused on details and technicalities while missing the fundamental values embedded in such matters as job discrimination and jury selection. "He approaches law in a formalistic, mechanical way abstracted from human experience," says Goodwin Liu, a professor of constitutional law at the University of California, Berkeley.

THE POWERS THAT BE

While Scalia has a libertarian streak that occasionally leads him to restrict the power of institutions--most notably the Bush Administration's ability to detain suspected terrorists--Alito tends to defer to established institutions in their legal battles with individuals. That tendency, as noted by University of Chicago law professor Cass Sunstein, is most evident in Alito's dissents and extends to police departments, prison authorities, zoning boards and especially corporations. In deciding whether a plaintiff had sufficient evidence that she had been sexually harassed, whether police had the right to strip-search a mother and child at a meth house during a raid or whether a death-row inmate's lawyer provided adequate counsel despite failing to obtain potentially mitigating evidence, Alito has usually given the benefit of the doubt to the powers that be.

When he opined that a black housekeeping manager at a Marriott hotel had not shown enough evidence of discrimination to merit a jury trial and argued that unhappy workers can't subject their employers to the costs of litigation every time they are treated unfairly, other judges on the panel said his reasoning would virtually "eviscerate" all employment-discrimination law. It is a concern that some liberal legal scholars share. "He has been consistently hostile to victims of discrimination, in employment cases and others," says Duke law professor Erwin Chemerinsky.

THE HIGH STAKES

When confirmation hearings begin in January, Senators will do their best to divine how Alito would rule on a range of key issues. But abortion, more than any other topic, will be on everybody's mind. Alito's mother Rose, 90, a former schoolteacher and principal, may have matter-of-factly told reporters that "of course" her son is "against abortion," but, of course, nobody really knows how Alito would actually rule on a challenge to Roe v. Wade. Even if Roberts and a confirmed Justice Alito voted against Roe, it would take another replacement of a moderate to liberal justice to have the five votes needed to overturn the 1973 landmark ruling. Still, abortion-rights advocates take Alito's support of the since-overturned Pennsylvania law requiring spousal notification as a sign that he would back more and more restrictions on abortion. "What you wind up with is not an overturning but an evisceration of Roe," says Blake Cornish, legal director of NARAL Pro-Choice America.

If confirmed, Alito would one day have an opportunity to weigh in on other much disputed issues, from affirmative action and campaign-finance reform to gay rights and state's rights. The last one may become an especially sensitive topic during his hearings. Since 1995 the Rehnquist Court has struck down, in whole or in part, more than 30 federal statutes, essentially arguing that Congress had overreached and such legislation should be left to the states. Alito's controversial dissent arguing to invalidate a federal law banning machine guns nationwide leads many Senators to suspect that he would try to further the trend. His reasoning, which laid out why Congress cannot use the commerce clause of the Constitution to ban the firearms, was eventually rejected by the Supreme Court. But his rationale could potentially be used to challenge Congress's power to regulate a whole range of areas, from the environment to civil rights to the workplace. And who knows? On Capitol Hill, that prospect alone could be enough to turn the mild-mannered Alito into the scene-stealing villain so many Democrats would just love to hate.

With reporting by Reported by Mike Allen, Perry Bacon Jr., Massimo Calabresi, Viveca Novak/Washington, Jeremy Caplan/New York, Sean Scully/Philadelphia