Analysis

Alito Leans Right, Where O'Connor Swung Left

Samuel A. Alito Jr. of the U.S. Court of Appeals for the 3rd Circuit has been nominated to replace retiring Supreme Court Justice Sandra Day O'Connor.
Samuel A. Alito Jr. of the U.S. Court of Appeals for the 3rd Circuit has been nominated to replace retiring Supreme Court Justice Sandra Day O'Connor. (By Jerry Mccrea -- Newark Star-ledger)

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By Charles Lane
Washington Post Staff Writer
Tuesday, November 1, 2005

In 1991, Judge Samuel A. Alito Jr. voted to uphold a Pennsylvania statute that would have required at least some married women to notify their husbands before getting an abortion; a year later, Justice Sandra Day O'Connor cast a decisive fifth vote at the Supreme Court to strike it down.

In 2000, Alito ruled that a federal law requiring time off for family and medical emergencies could not be used to sue state employers for damages; three years later, O'Connor was part of a Supreme Court majority that said it could.

And last year, Alito upheld the death sentence of a convicted Pennsylvania murderer, ruling that his defense lawyers had performed up to the constitutionally required minimum standard. When the case reached the Supreme Court, O'Connor cast a fifth vote to reverse Alito.

The record is clear: On some of the most contentious issues that came before the high court, Alito has been to the right of the centrist swing voter he would replace. As a result, legal analysts across the spectrum saw the Alito appointment yesterday as a bid by President Bush to tilt the court, currently evenly divided between left and right, in a conservative direction.

O'Connor "has been a moderating voice on critical civil liberties issues ranging from race to religion to reproductive freedom," said Steven R. Shapiro, national legal director of the American Civil Liberties Union. "Judge Alito's nomination . . . therefore calls into question the court's delicate balance that Justice O'Connor has helped to shape and preserve."

"With this nomination, Bush is saying 'Bring it on!' " said John C. Yoo, a former Bush administration Justice Department official. "There is no effort to evade a clash with Senate Democrats. That's why conservatives are so happy."

The differences in judicial philosophy between Alito and O'Connor are not absolute. He has not flatly written that Roe v. Wade , the Supreme Court's 1973 abortion rights ruling, should be overturned -- as have some other conservatives who were thought to be on Bush's list for the court.

Alito struck down a New Jersey law that would have banned the procedure known by opponents as "partial-birth" abortion -- just as O'Connor did. His ruling, following the one O'Connor voted for, said the statute was unconstitutional because it did not include an exception for cases in which the woman's health was at risk.

And despite the disagreement on the Family and Medical Leave Act's applicability to the states, the two appear to share a narrow view of the federal government's power to make national laws under its authority to regulate interstate commerce.

The scholarly Alito earned his conservative reputation not through outspoken opposition to the Supreme Court's jurisprudence -- which was the approach taken by Judge Robert H. Bork in his failed bid for the Supreme Court in 1987. Instead, as a member of the U.S. Court of Appeals for the 3rd Circuit, which includes Pennsylvania, New Jersey, Delaware and the Virgin Islands, he sought to uphold precedent as he saw it through his own conservative filter.

An irony of Alito's appointment as a replacement for O'Connor is that, in several of his most controversial rulings, he was exploring how much conservative running room there might be in sometimes-vague legal standards O'Connor herself had helped articulate on the Supreme Court.

One such standard was O'Connor's notion, set forth in a series of abortion cases during the 1980s, that Roe v. Wade protected the abortion right against any "undue burden" a state might try to place on it.


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