Alito, In and Out of the Mainstream

As in the Kauffman case, Alito voted in two-thirds of the criminal cases to uphold the rulings of a lower-court judge. His votes in one small group of those criminal cases -- four appeals from inmates facing death sentences -- were even more consistent. Every time, he voted against sparing the prisoner from execution. Nationally, federal appeals judges in disputed cases vote to give relief to prisoners sentenced to death about a third of the time.

Such a record, the University of South Carolina's Songer said, implies that Alito would behave differently from Justice O'Connor, who has been willing in recent years to restrict the use of the death penalty.

Voting With GOP Judges

If Alito's treatment of criminal cases is unusual, his record is more ordinary in a few other areas. This is particularly true in lawsuits by employees who claim to have been denied wages, benefits or union rights. Of 19 such cases in the analysis, Alito voted in favor of workers nearly half the time -- about the same as judges nationwide and more often than the average Republican-appointed judge.

In 1991, his was the sole vote siding with 228 Philippine seamen working on Kuwaiti oil tankers in the Persian Gulf who alleged that they deserved to be paid minimum wage under the Fair Labor Standards Act. It was around the time of the Persian Gulf War, and their ships had temporarily been reflagged under the U.S. flag because it was dangerous in that region for vessels from neutral countries.

The court majority ruled the sailors did not deserve the pay because they were outside U.S. waters and their ships were only temporarily reflagged. Alito countered that the legislative history of the labor law "makes clear that Congress intended for the minimum wage requirement to apply to all seamen on all American vessels."

Alito has been less sympathetic to employees who claim to have been discriminated against on the basis of race, sex, age or disability, siding squarely with them in just three of 15 such cases in the analysis. In those and other discrimination cases, his voting pattern is comparable to the typical Republican-appointed judge.

He also is similar to other Republican appointees in overall deference to the government. For example, he agreed with the government position in all but one of seven cases in which prisoners alleged violations of their rights.

The only kind of case involving the government in which Alito ruled against its interest most of the time was when companies challenged federal regulations.

His treatment of immigration issues -- siding one time in eight squarely with immigrants who were trying to win asylum or block their deportation -- makes Alito less sympathetic to immigrants than most Republican appointees. At a time when other circuit judges nationwide have criticized as too harsh the reasoning and conduct of the Board of Immigration Appeals, Alito has displayed "almost total deference" to the board, said Owen M. Fiss, a Yale Law School professor who, with 21 Yale faculty and students, has analyzed the more than 400 published opinions Alito has written.

In the 1994 Tipu v. Immigration and Naturalization Service , two judges with whom he heard the case -- both GOP appointees -- threw out a deportation order against a Pakistani immigrant convicted on a drug conspiracy charge. The top administrative board that considers immigrants' appeals, they reasoned, had made mistakes, ignoring that Mohammed Zafar Tipu had played a minor role in the conspiracy, received a high school degree while serving a light prison sentence and cared for an ailing brother.

Alito wanted to uphold the deportation. "The majority has wandered well beyond the limited scope of appellate review that we are permitted," he wrote in his dissent. "Whatever else one may think about [the immigration board's] decision, it was not arbitrary, irrational or contrary to law."

Last year, the 3rd Circuit blocked the deportation of a Korean couple, longtime residents of the United States who were convicted of a tax violation, concluding that the crime was not an "aggravated felony" that required them to be removed. Alito, in a dissent, gave a lengthy interpretation of what he believed Congress had in mind when it wrote a section of federal immigration law -- and the majority chided him, writing that a judge should reach decisions "unaided by speculation."