WASHINGTON (ABP) — President Bush's nomination of federal appeals judge Samuel Alito to the Supreme Court could shift the court firmly to the right — immediately and for decades to come — on issues such as abortion rights and the relationship between church and state.
If Bush's Oct. 31 nomination is confirmed by the Senate, Alito would replace retiring Justice Sandra Day O'Connor, who is the high court's moderate swing vote.
“He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people,” Bush said in comments announcing Alito at the White House.
Alito, in response, said he believes in judicial humility. “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,” he said.
Many social conservatives have argued that some federal judges have been too willing to go beyond the original intent of the framers of the Constitution by creating rights and attempting to solve social ills with court decisions. Moderates and liberals, on the other hand, have responded that the framers understood that a document written in the 18th century would have to be reinterpreted by future generations.
Alito, 55, is a New Jersey native and graduate of Princeton University and Yale Law School. He is a Roman Catholic. If he is confirmed, he would join new Chief Justice John Roberts and associate justices Antonin Scalia, Clarence Thomas and Anthony Kennedy to constitute the high court's first-ever Catholic majority.
The remaining justices include two Jews — Ruth Bader Ginsburg and Stephen Breyer — and two Protestants, John Paul Stevens and David Souter.
Alito's addition would also leave Ginsburg as the court's only female member.
Bush urged the Senate to confirm Alito quickly. “I urge the Senate to act promptly on this important nomination so that an up-or-down vote is held before the end of this year,” he said.
That may not be likely.
Alito's nomination came just days after complaints from conservatives helped scuttle the nomination of Harriet Miers, the White House's top lawyer. Miers withdrew her name from consideration Oct. 27.
The moderate O'Connor was frequently a swing vote in close decisions on controversial social issues. Demonstrating the high stakes of replacing her, advocacy groups on both sides of the culture war reacted almost immediately to the Alito pick.
In a press release issued a couple of hours after Bush's announcement, the head of Americans United for Separation of Church and State called the pick “deeply troubling.”
In another statement issued just minutes later, the head of the conservative Family Research Council countered that Bush “could not have chosen a more qualified nominee.”
Reaction in the Senate, which is charged with approving or rejecting the nominee, was equally polarized.
Senate Majority Leader Bill Frist (R-Tenn.), in a Capitol press conference introducing the nominee to journalists, called Alito “outstanding” and, like Bush, demanded a swift “up-or-down vote” on him.
But about 30 minutes later, Sen. Charles Schumer (D-N.Y.), one of the most outspoken Democrats on the Senate Judiciary Committee, denounced the nomination as one that would cause significant division. “When there is a controversial nominee for a pivotal swing vote on the court, the process should not be short-circuited or rushed,” he told reporters.
Responding to questions, Schumer did not commit to voting against Alito. Nor did he promise that Democrats would try to use a filibuster to scuttle the nomination. However, a Freudian slip in his answer may cast light on the significant misgivings Democrats have about Alito.
“Nothing is on the table and nothing is off the table. Let's learn what we can about Judge Scalia,” Schumer said, mistakenly referencing the current Supreme Court justice who is the target of moderate and liberal criticism, Antonin Scalia. Some pundits have already dubbed Alito as “Scalito” because of his alleged ideologically similarity to the court's arch conservative.
Alito's judicial record shows that he may be inclined to rule similarly to Scalia on abortion cases but his record on church-state issues may be more nuanced.
He has been a judge on the 3rd U.S. Circuit Court of Appeals, based in Philadelphia, for 15 years. He was appointed to that position by President George H.W. Bush. He also served as an attorney in the Reagan administration and is generally considered solidly conservative.
He has participated in thousands of cases that leave a long judicial record, including about 300 opinions that he has authored.
On abortion, Alito is best known for the 3rd circuit's decision in a landmark 1991 abortion case. In Planned Parenthood vs. Casey, he joined the unanimous opinion of a three-judge panel upholding most of a Pennsylvania law imposing several new restrictions on women seeking abortions.
Alito wrote a dissent on part of the decision, however, stating he would also uphold a part of the law that required women to notify their husbands before obtaining an abortion. His colleagues found that portion of the law unconstitutional, as did the Supreme Court later.
Despite some groups' misgivings, Alito's record on church-state issues may be less clear.
Chip Lupu, a church-state expert and law professor at George Washington University, said of Alito, “I don't think this guy is any radical on church-state issues.” However, he added, “I don't think he's going to be an O'Connor clone.”
Lupu and his George Washington colleague, Bob Tuttle, said Alito's rulings seem to indicate he is open to some public displays of religious items, but his rulings have not departed greatly from Supreme Court precedent in that area.
In a 1999 case, ACLU vs. Schundler, Alito and his court decided that a holiday display erected by Jersey City, N.J., at a municipal building did not violate the First Amendment's ban on government endorsement of religion.
The original display — which contained a Christian nativity scene and a Jewish menorah — was first held to be unconstitutional by Alito's court. But when Jersey City added a Christmas tree, other secularized holiday symbols and symbols of the African-American holiday Kwanzaa, a three-judge panel of the same court — including Alito — held the display to be constitutional, even if its original form was not.
Earlier this year, the Supreme Court found that a Kentucky Ten Commandments display with a similar unconstitutional history did violate the constitution, despite later changes.
Tuttle said Alito's decision in the Jersey City case might mean he would have ruled differently on the recent Kentucky case if he had been on the Supreme Court.
However, the professor added, because the court's precedent in the area of public religious displays is “so maddeningly dense and confused,” rulings often vary according to the circumstances of the case.
In other church-state areas, Tuttle and Lupu said, Alito may offer some encouragement for those who believe in a strong reading of the First Amendment's other religion clause — the one guaranteeing the free exercise of religion.
Tuttle pointed to Alito's role in another 3rd Circuit Court decision, Fraternal Order of Police vs. City of Newark. In that 1999 decision, the court found city officials had violated the rights of two Muslim police officers who believed they were religiously obliged to wear beards by banning facial hair for police. Alito, authoring the court's opinion, noted that the city allowed a medical exemption to the rule, and thus should allow a religious exemption as well.
“I think it's the strongest free-exercise case that any of the federal circuit courts have decided in the last six or seven years,” Tuttle said, noting the decision suggests Alito would be “really stronger than [late] Chief Justice [William] Rehnquist would have been on that same set of facts. Rehnquist and probably Roberts would have been much more deferential to the government on cases like that.”