Bush Selects Alito for Supreme Court
President Bush today named appeals court Judge Samuel A. Alito Jr. to the U.S. Supreme Court. Alito, 55, serves on the Philadelphia-based U.S. Court of Appeals for the Third Circuit, where his record on abortion rights and church-state issues has been widely applauded by conservatives and criticized by liberals.
Alito, appointed to the appeals court in 1990 by George H.W. Bush, has been a regular for years on the White House's short list for the high court. He was also among those proposed by conservative intellectuals as an alternative to Harriet Miers, the White House counsel who withdrew as the nominee last week.
The Washington Post's Fred Barbash followed the step-by-step process of choosing a new chief justice. He'll continue to blog all of the events as President Bush nominates a candidate for associate justice.
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Alito's resume, including his service in the Justice Department during the Reagan administration, is very much unlike Miers's, who had no appellate experience, and very much like that of Chief Justice John Roberts. Like Roberts, Alito served during the Reagan administration in the office of the Solicitor General, which argues on behalf of the government in the Supreme Court. Unlike Roberts, he has opined from the bench on both abortion rights, church-state separation and gender discrimination to the pleasure of conservatives and displeasure of liberals.
While he has been dubbed "Scalito" by some lawyers for a supposed affinity to conservative Supreme Court Justice Antonin Scalia and his Italian-American heritage, most observers believe that greatly oversimplifies his record. Alito is considered far less provocative a figure than Scalia both in personality and judicial temperament. His opinions and dissents tend to be dryly analytical rather than slashing.
In addition, his appeals court record is not uniformly conservative on the sorts of issues that arise in Supreme Court confirmation battles. In 2004, he ruled in favor of a complaint brought under the Individuals with Disabilities Education Act by a boy badly bullied by his classmates who was seeking legal relief but had been rebuffed by a U.S. District Court. He also authored a majority opinion granting federal court review to an African American who could not get state courts to hear his claim of racial bias on the part of a juror in his trial. The case involved a juror who used racial epithets outside the confines of the jury room. His record on the appeals court makes Alito less liable to suggestions made about Roberts, with only two years as a judge, that he is somehow a judicial mystery.
Rather, liberals are likely to focus on his opinions and dissents, most notably in the 1991 case, Planned Parenthood v. Casey. In that case, Alito joined joined a Third Circuit panel in upholding most of a Pennsylvania law imposing numerous restrictions on women seeking abortions. The law, among other things, required physicians to advise women of the potential medical dangers of abortion and tell them of the alternatives available. It also imposed a 24-hour waiting period for abortions and barred minors from obtaining abortions without parental consent. The panel, in that same ruling, struck down a single provision in the law requiring women to notify their husband's before they obtained an abortion. Alito dissented from that part of the decision. Citing previous opinions of O'Connor, Alito wrote that an abortion regulation is unconstitutional only if it imposes an undue burden on a woman's access to the procedure. The spousal notification provision, he wrote, does not constitute such a burden and must therefore only meet the requirement that it be rationally related to some legitimate government purpose.
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While lauded by conservatives, Alito has also been criticized by women's rights organizations for his 1996 dissent in a sex discrimination case, Sheridan v. Dupont , in which he argued that the Third Circuit that had made it too easy for discrimination complaints to reach a jury trial. The standards for deciding when a discrimination case reaches trial are hotly controversial as they determine whether such a case moves forward at all.
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