Alito Will Be Hard to Portray as an Extremist

Nov. 3 (Bloomberg) -- It's going to be hard to paint Judge Samuel Alito, President George W. Bush's nominee to the U.S. Supreme Court, as an extremist.

Whether it is surveys of lawyers who have practiced before him, academic studies of judicial political independence, his rating by the American Bar Association, or any reading of his opinions, Alito has been a fair and thoughtful judge. No one is going to seriously question his legal background. It's even hard to find any objective measure that would show him to be unqualified or even controversial.

In 1990, a Democratic-controlled Senate unanimously confirmed him for the circuit court in just 66 days, less than the going average of 93 days. At that time, the liberal-leaning ABA, evaluating his professional expertise, potential political bias and judicial temperament, gave him the highest rating of ``well qualified.''

Since then, everything Alito has done has lived up to that evaluation. The Almanac of the Federal Judiciary regularly surveys lawyers who practice before federal judges. Half of those surveyed viewed him as politically neutral; all of those polled thought he had a good judicial temperament.

Not Voting in Lockstep

Law professors Stephen Choi of New York University and Mitu Gulati of Georgetown University did a study of the circuit court judges appointed from the administration of presidents Jimmy Carter through the first term of Bill Clinton on several issues. Among them was whether a judge votes in lockstep with other judges nominated by the same political party. They found that Alito was the 12th-most politically independent Republican of the 55 that they studied. If he had been a Democrat, his ranking would have made him the eighth- most politically independent out of 42.

Alito has had some influence on the most important legal issue of the day, ranking about in the middle of the circuit court judges based on how frequently the Supreme Court cites his decisions. He also works hard, placing in the top 30 percent based on the number of opinions he has written. His legal background is stellar: a graduate of Yale Law School, he served on the law review, clerked for the circuit court, and is widely published in law journals.

Two Cases

So what's not to like?

The two cases the Democrats are attacking him on, involving the hot-button issues of guns and abortion, will give them little mileage. It is clear that he was not following his political preferences, but simply Supreme Court precedents. One case, Alito's 1996 dissent from a ruling over whether a federal law regulating machine guns was properly written, is cited as a sign that Alito likes these weapons.

In 1995, the Supreme Court ruled in another gun case that for federal law to apply there must be some proof that the items being regulated were involved in interstate trade. The congressional author of that law, like the one Alito ruled on, had merely forgotten to include the jurisdictional language normally added to federal legislation.

What was required for the law to be valid was trivial: just a finding that some part of the gun, for example, the metal in gun or the bullets or anything had crossed state lines. Something that is true for all guns.

Abortion Rulings

The other case, his 1991 dissent in Planned Parenthood v. Casey, was based on the very narrow issue of whether a woman had to tell her husband before having an abortion. The Supreme Court, in a 5-4 ruling, decided there was no such obligation. The difference was simply that a bare majority differed with him on whether this requirement represented a burden to the women.

More telling were Alito's three decisions supporting the position of pro-choice advocates.

He struck down restrictions on so-called partial-birth abortions, as well as a law that required women seeking Medicaid funds for abortion to reveal the names of those responsible for pregnancies resulting from rape or incest.

He also upheld a New Jersey law that prevented a suit for damages in a wrongful death case on behalf of aborted fetuses, ruling that the unborn had no constitutional protection.

Are these the rulings of an extremist?

As Karlyn Bowman points out this week in Roll Call, in 1992, the Gallup Poll found that 73 of respondents favored a law requiring that husbands be notified if a wife decides to have an abortion. In a similar poll in 2003, 72 percent had the same position.

What makes Alito a conservative is how narrowly he makes decisions and how closely he follows precedent.

Democrats are talking about a filibuster at Alito's Senate confirmation hearings. If they keep this up, it is they who will tagged with the extremist label.

UPDATE: One point that I should have probably made in the piece is that the overall Choi-Gulati index puts Alito at 16 out of 73 circuit court judges. If I had referenced their overall index, I made could have made a stronger case for Alito. Choi and Gulati conclude their paper noting that "the Bush Five [those who they thought would be nominated for the Supreme Court] did well." See also this piece from Chemerinsky attacking Alito's nomination.