Alito Respectful of Precedent, Associates Say

Judiciary Committee Chairman Arlen Specter (R-Pa.) asked Alito about stare decisis during their informal meeting last week. Specter said that the nominee has told him he would evaluate precedent on a "sliding scale," giving the greatest weight to decisions that had been upheld by a large number of different justices appointed by different presidents.

Specter did not ask Alito directly about Roe . Nor did Alito address Specter's suggestion that some long-settled cases acquire "super-precedent" status. But the chairman said in an interview that "these questions are valuable because if . . . you work the edges and fringes, you can then try to get a feel for not just the words but the music -- the body language and the demeanor."

Alito's concept of a "sliding scale" is interesting in light of abortion-rights history: In the Supreme Court's 1992 decision upholding Roe , four of the five votes came from justices who were put on the court after Roe was initially decided.

John Paul Stevens was appointed by President Gerald R. Ford. Sandra Day O'Connor and Anthony M. Kennedy were appointed by President Ronald Reagan. David H. Souter was appointed by President George H.W. Bush. The fifth vote came from Roe 's author, Harry A. Blackmun, appointed by President Richard M. Nixon.

Those who know Alito well say he would treat precedent respectfully in part because that is what he has done for years on the 3rd Circuit, which is based in Philadelphia.

"Based on my experience, he has an abiding respect for stare decisis , and frankly I've never seen anything that would give rise to a hint of disrespect for precedent," said Timothy K. Lewis, a Washington lawyer who served on the 3rd Circuit from 1992 to 1999. "He is unequivocally not a judicial activist in any way, shape or form."

"Once he's confirmed, is he going to go off on creative jaunts, or instead is he going to rely on prior Supreme Court precedent almost as much as he relied on it as a circuit judge?" asked David Garrow, a Supreme Court historian at Cambridge University in Britain who has been studying Alito's appeals court opinions. "The likely behavioral answer is that, having done things one way for 15 years with absolute consistency, he'll continue to largely do things that way."

Jeffrey Wasserstein, a former Alito law clerk who said he voted for the Democratic presidential ticket in 2004, said: "He recognizes that precedent underlies our system and that it is necessary for settled expectations. I'd be personally surprised if he lightly overruled a precedent that has been on the books for 30 years."

Abortion rights advocates say Alito's 1991 dissenting opinion upholding the Pennsylvania spousal notification statute showed he was willing to push the law in the direction of his own policy preferences.

He was a minority of one on a three-judge panel, and the majority's view was sustained by the Supreme Court.

But lawyers who know him, noting that his opinion avoided any wider criticism of Roe , see it as his best effort to interpret a murky standard that had been laid out by O'Connor in some previous cases.

"Alito was trying to understand what O'Connor meant," said Howard Bashman, a Philadelphia appellate lawyer who has argued before Alito. "But now she's said what she meant."

Bashman recalled one civil rights case in which he represented a prisoner with a highly technical claim on which other appeals courts had reached varying rulings. Alito recognized that the issue was controlled by an existing 3rd Circuit precedent, and dismissed the appeal in what Bashman called "a quick opinion saying they were bound by the prior panel's opinion. He was not out trying to stir up a hornet's nest."

Though Alito's rulings on the 3rd Circuit have generally reached conservative results, he has not publicly articulated an overarching critique of recent Supreme Court jurisprudence.

This is in contrast not only to Scalia and Thomas, but also to other federal judges Bush might have chosen.

As a law professor, Michael W. McConnell, who now sits on the U.S. Court of Appeals for the 10th Circuit in Denver, attacked Roe and developed a theory on the relationship between church and state. As a member of the California Supreme Court, Janice Rogers Brown, now on the U.S. Court of Appeals for the District of Columbia Circuit, denounced Supreme Court precedents giving commercial advertising less constitutional protection than political speech.

"He is not coming from the academic perspective of someone who's looked at and criticized the Supreme Court from a theoretical perspective," Wasserstein said. "He is someone who, for his entire career, he's looked at the practical applications of constitutional law."