Alito, In and Out of the Mainstream

Judge Samuel A. Alito Jr. pauses in November while making introductory courtesy calls on senators who will be voting on his nomination to the Supreme Court.
Judge Samuel A. Alito Jr. pauses in November while making introductory courtesy calls on senators who will be voting on his nomination to the Supreme Court. (By Melina Mara -- The Washington Post)
By Amy Goldstein and Sarah Cohen
Washington Post Staff Writers
Sunday, January 1, 2006

During 15 years as an appeals court judge, Supreme Court nominee Samuel A. Alito Jr. has been highly sympathetic to prosecutors, skeptical of immigrants trying to avoid deportation, and supportive of a lower wall between church and state, according to an analysis of his record by The Washington Post.

Alito has taken a harder line on criminal and immigration cases than most federal appellate judges nationwide, including those who, like him, were selected by Republican presidents, the analysis found.

In civil rights cases, Alito has sided against three of every four people who claimed to have been victims of discrimination, based on the lawsuits in the analysis. Such a record is typical of Republican appointees on federal appeals courts in discrimination cases, the area of the law in which national studies show GOP-appointed judges differ most from their Democratic-appointed counterparts.

Still, in a few areas of the law, Alito's record resembles that of the average U.S. appellate judge. His decisions on First Amendment cases have been mixed. And when workers have sued for pay or benefits, he has agreed with them about half the time.

The analysis, based on a database developed through a review of more than 200 cases Alito helped to decide on the U.S. Court of Appeals for the 3rd Circuit, provides a more nuanced glimpse of his ideology than the portrayal by his supporters and critics. With Senate confirmation hearings scheduled to start next week, Bush administration officials and conservative allies working to win Alito's approval say he fits within the judicial mainstream; some Democrats and liberal advocacy groups trying to defeat his nomination say he is an ideologue.

Neither characterization is completely accurate.

Instead, the analysis, along with interviews of scholars who study the courts, shows that Alito takes consistently restrictive stances on some social issues and criminals' rights but does not differ substantially from the typical judge in other areas.

Overall, the analysis shows, Alito does not disagree with majority opinions more frequently than most federal appeals judges do in similar cases. Yet a closer look finds that he dissents most often in areas where his views are least typical of the average judge: cases in which he has favored religion and largely sided against immigrants and one group of convicted criminals: prisoners facing the death penalty.

"Here is where Alito really takes his stand," said Kenneth L. Manning, a political scientist at the University of Massachusetts at Dartmouth who has studied the voting behavior of other appellate judges.

Because Supreme Court justices are free to disregard precedent, Alito's decisions are an imperfect barometer of how he might rule if he succeeds Sandra Day O'Connor, a pivotal member of the high court. Still, scholars said that his opinions since joining the 3rd Circuit in 1990 yield important clues, such as which areas of law he is passionate about, whether he strives for consensus and how his views align with Supreme Court decisions.

To examine his record, The Post looked at how Alito voted on all 221 cases he has helped to decide in which the 3rd Circuit -- which handles appeals from Pennsylvania, New Jersey, Delaware and the Virgin Islands -- issued a divided ruling. Those cases provide a revealing window to a judge's ideology, judicial scholars say, because they involve legal issues that are unclear. In that way, they also are most like the cases the Supreme Court hears, said Donald R. Songer, a political scientist at the University of South Carolina who studies appellate courts.

The idea of trying to gauge a judge's ideology from his voting patterns on different types of cases is unpopular among law professors who prefer to study legal reasoning case by case. But the method used by The Post is well accepted among political scientists -- many of whom clump together votes on types of cases to determine whether a judge is liberal or conservative, a step The Post did not take.

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