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Comparisons to Scalia, But Also to Roberts

By Michael Grunwald, Jo Becker and Dale Russakoff
Washington Post Staff Writers
Tuesday, November 1, 2005

On April 5, 1990, four days after Samuel A. Alito Jr. celebrated his 40th birthday, he enjoyed a cakewalk of a hearing on his nomination to the U.S. Court of Appeals. The Senate Judiciary Committee asked Alito only four questions -- just one more than its chairman, Sen. Edward M. Kennedy (D-Mass.), asked Alito's 4-year-old son, Philip.

Sen. Frank Lautenberg (D-N.J.) introduced Alito as "an accomplished and distinguished lawyer," a prosecutor who had spent his entire career in government service. Kennedy was even more lavish in praising President George H.W. Bush's nominee, and said he was "sure" Alito would be a successful judge. "In the absence of any large group complaining about your nomination," said Sen. Arlen Specter (R-Pa.), "it appears that you will have clear sailing."

Specter was right; Alito was unanimously confirmed. But 15 years later, another President Bush has nominated Alito to the Supreme Court, and the sailing no longer seems clear. The uncontroversial, apolitical public servant of 1990 is now being embraced and attacked as a staunch conservative. A shy, soft-spoken man who rarely displays much emotion about anything other than his family or his beloved Philadelphia Phillies is being hailed and reviled as the second coming of Justice Antonin Scalia, the caustic legal provocateur who also happens to be a Catholic, Italian American jurist from Trenton, N.J.

The real Sam Alito, according to the lawyers and other friends who know him well, is more like the second coming of Chief Justice John G. Roberts Jr., but with a longer paper trail. They describe Alito as a studious, diligent, scholarly judge with a first-rate mind and a deadpan sense of humor, a neutral arbiter who does not let personal beliefs affect his legal judgments.

They say he inherited a commitment to unbiased professionalism from his father, who served as the New Jersey legislature's nonpartisan research director for a quarter century. They don't know anyone who isn't a journalist who actually calls him "Scalito."

On the left-of-center 3rd Circuit, Alito has written several dissents applauded by conservative commentators, from his argument that a federal ban on machine guns seemed unconstitutional to his opinion that a state law requiring most married women to notify their husbands before getting an abortion was not.

But even though Alito has been a member of the Federalist Society, and many of the "large groups" Specter mentioned in 1990 are mobilizing to fight his nomination, he was widely respected among liberals as well as conservatives before his judgeship. And some liberals who have known him for decades still say they admire the man, if not his opinions.

"I have no idea how he's voted on anything in the entire 30 years of our friendship . . . he's quite apolitical," said New York lawyer Daniel Rabinowitz, a liberal Democrat who attended Yale Law School with Alito, clerked with him on the 3rd Circuit and served with him as a federal prosecutor. "He's been a nonpartisan public servant in the tradition of his dad."

Like Roberts -- and unlike White House counsel Harriet Miers, whose nomination was withdrawn last week -- Alito followed a fairly traditional path to his nomination, attending Ivy League schools, clerking for a federal judge, working for the Department of Justice, and serving on the bench. Like Roberts, Alito has been touted as material for the high court for decades; even his Princeton University yearbook predicted that he would "warm a seat on the Supreme Court." According to classmate Victor R. McDonald III, the newspaper at Alito's high school newspaper forecast an even loftier future:

"Sam Alito defeats God in landslide election for ruler of the universe."

'Icon of Professionalism'

Samuel Anthony Alito Jr. was born on April 1, 1950, in the Chambersburg section of Trenton, a blue-collar Italian neighborhood in a hardscrabble industrial city. But he grew up in the suburb of Hamilton, and his parents were committed educators.

His mother, Rose, was an elementary school principal. His father, Samuel, was an Italian immigrant who became a high school history teacher and then the first director of New Jersey's Office of Legislative Services, a kind of Garden State equivalent of the Congressional Research Service. From the late 1960s until his retirement in 1983, he provided a wealth of public policy information to Republicans and Democrats, and he was respected on both sides of the aisle.

"He was known throughout New Jersey as an icon of professionalism," recalled his successor, Albert Porroni. "He had a great shock of white, thick hair, smoked a pipe -- just what you would expect of a research director. He was revered by legislators of both parties for his commitment to the highest-quality research, free of bias and partisanship."

"I don't see how his values could not have influenced young Sam," Porroni added.

Sam and his sister Rosemary -- now a New Jersey lawyer and the author of an influential guide to the state's employment law -- attended public school at Hamilton East-Steinert High, and were partners on the debate team. Sam was the class brain; his sophomore English teacher, Elaine Tarr, realized that the regular curriculum would not challenge him, so she gave him a list of great authors to read on his own: Faulkner, Orwell, Sinclair, Kafka.

"If I made a statement, I had better be able to defend it, because he would come back at me," Tarr said. "But Sam was always very respectful even when he disagreed."

McDonald, Alito's classmate, recalled that teachers often excluded his scores when they graded on a curve, because he was so far ahead of everyone else. "We all knew A's were not the equivalent of Alito A's," he said. But if Alito was a hero among the nerds, the cool kids liked him, too; he was easily elected student council president. He also played in the school band, ran track and was the editor of the Hy-Liter, the student paper.

Alito then attended Princeton, where he spent most of his time in the library. He was admitted to the Woodrow Wilson School's politics program, where he spoke at conferences on arms control and privacy, and wrote a thesis on Italy's constitutional court. His thesis adviser, Walter Murphy, recalled him as "probably the most judicious student I ever had," focused like a laser on a legal career.

Alito also joined the debate team, and won a $100 prize for an argument defending Vice President Spiro Agnew. One of his debate teammates, Mark Dwyer, recalled Alito as a political moderate, which was not as unusual at Princeton as it was at other Ivy League schools during the Vietnam era; one classmate recalled it as "a hotbed of social rest." Still, there were some radical antiwar activists, and Murphy recalled that "Sam, when these things were discussed in seminar, would sort of look at them like, 'Man, you have got to be kidding.' "

In fact, Alito joined the Reserve Officers Training Corps. But Dwyer recalls that decision as a pragmatic response to a low draft number, not a political statement. Dwyer says Alito simply wanted to enter the military as an officer, not as an infantry grunt; he later served in the Army Reserve and was honorably discharged as a captain.

Alito then went on to Yale Law School, where he was known as a quiet, sober, extremely bright law wonk. "If you missed class and needed someone to borrow notes from, Sam was the person," said classmate George Carpinello.

Alito was a conservative, which was not particularly fashionable at Yale, but he was not too vocal about it; many friends were quite liberal. Classmate Peter Goldberger, now an appellate lawyer in Pennsylvania, says he is "left-of-liberal," but he recalls that when Alito did speak, "it was always something that made you sit up and think, 'Wow, what a good idea.' "

"Sam found a genuine intellectual home in the law," said classmate Rabinowitz. "He likes its detail, its care, its exactitude and he likes its fairness."

After Yale, Alito clerked on the 3rd Circuit for Judge Leonard I. Garth, a Nixon appointee with a reputation as a scrupulous appellate craftsman, who is now one of Alito's colleagues. Alito then joined the appellate division of the U.S. attorney's office in Newark, as an assistant under Maryann Trump Barry, who is now another colleague on the 3rd Circuit, but is perhaps best known as Donald Trump's sister. The office's prosecutors called the appellate division at all hours for advice on warrants and subpoenas -- and Alito was their go-to guy.

"Even as a young lawyer, the product he turned out was superb," Barry said.

In the U.S. attorney's office, Alito also found his future wife, Martha-Ann Bomgardner, a law librarian who seemed his polar opposite. Where he was studious and reserved, she was a live wire; they married soon after he left the office to move to Washington in 1981.

A Civil Servant First

At the dawn of the Reagan Revolution, the Justice Department was evolving into a sort of Republican think tank, filled with bright young conservatives who wanted to reshape the legal landscape on such issues as school busing, affirmative action and abortion. Roberts was part of that "Band of Brothers" -- although some fellow revolutionaries say he was always more committed to the law than any policies.

Alito was not even part of that crowd, they say. He entered government as a career civil servant, not a political appointee -- first in the solicitor general's office, where he argued for the United States in 12 cases before the Supreme Court, and then at the Office for Legal Counsel, giving advice to the administration.

Alito's cases did not focus on hot-button social issues; they ranged from the rules governing the seizure of racketeering assets to the right of the Air Force to withhold the release of witness statements in accident investigations. He once argued that the Clean Water Act should not bar the Environmental Protection Agency from giving variances to polluters; his colleagues all say he was just doing his job, not making policy.

"Sam wasn't someone who talked politics," said Lawrence G. Wallace, who worked with Alito at the solicitor general's office "He was a highly professional person who didn't make a lot of waves; his whole personality was sort of buttoned down."

Alito got noticed as someone who was often the smartest guy in the room but didn't seem to have a need to flaunt it. He took an analytical approach to every case, focusing on the wording of the statutes in question. He shied away from novel legal arguments. He was so deliberate that colleagues developed a catchphrase to describe his exhaustive pondering; they called it "noodling," as in, "Oh, Sam's in there noodling again."

"He's John Roberts, but with a background in criminal law," said Michael Carvin, a colleague at the Justice Department. Former solicitor general Charles Fried, now a Harvard law professor, said the "Scalito" moniker is totally unfair, and probably based on ethnic stereotypes.

Douglas W. Kmiec, a professor of constitutional law at Pepperdine who worked with Alito at Justice, points out that unlike Scalia, Alito is often interested in trying to determine the legislative intent of a statute by studying its history.

"Nino is a radical conservative, willing to turn the world upside down to achieve a conservative agenda," Fried said. "Sam is a conservative conservative. He would never do something that when it came up you'd say, 'Whoa, where did you get that?' "

Judicial Restraint

In 1985, Office of Legal Counsel head Charles Cooper asked Alito to be his deputy; he said it was clear that Alito, although less vocal than the political appointees, shared their philosophy of judicial restraint.

For example, Alito helped write a opinion that employers could legally fire AIDS victims because of a "fear of contagion, whether reasonable or not," because discrimination based on insufficient medical knowledge was not prohibited by federal laws protecting the disabled. Alito later explained that "we certainly did not want to encourage irrational discrimination, but we had to interpret the law as it stands."

In 1987, President Ronald Reagan appointed Alito to be the U.S. attorney for New Jersey, an unusual political plum for a career civil servant. Alito got off to a rocky start when a jury acquitted 20 mob defendants his office had prosecuted -- a case he inherited from his predecessor -- but when National Law Journal described the defeat as an embarrassment for his office, Alito fired back an uncharacteristically caustic response that was twice as long as the original article, calling it "an utterly distorted picture of my office."

In general, though, Alito was known as a low-volume, by-the-book boss, driven by the law rather than any ideology. "He was his own person," said Department of Homeland Security Secretary Michael Chertoff, who was Alito's top deputy and then a colleague on the bench. "His legal behavior was never a function of any personal politics."

Lawrence Lustberg, a liberal civil rights lawyer who was once a public defender in New Jersey, recalls that Alito was never a crusader; he was willing to listen to arguments about why cases should be dismissed or plea-bargained. In 1990, when Alito was nominated for the bench, then-Sen. Bill Bradley (D-N.J.) noted that "without a lot of fanfare, without calling daily news conferences, he has inspired his office with a low-key sense of professionalism."

At his last nomination hearing, Alito faced just a handful of questions. Kennedy asked if after a career representing the government, he could treat claims against the government fairly. "I am confident that I can do that," Alito replied.

Kennedy then asked what quality was most important for an appellate judge. Open-mindedness, Alito replied. "What about that fellow on your left?" Kennedy asked. "Does he have any comment?" Philip Alito did not.

"We are glad to have you here, and we will look forward to supporting you and voting for you," Kennedy said. "We are glad your family is here, too."

Staff writers Laura Blumenfeld, Marc Fisher, Barton Gellman, Amy Goldstein and R. Jeffrey Smith and research editor Lucy Shackelford contributed to this report.

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