washingtonpost.com
A Search for Order, an Answer in the Law
Since his youth, Samuel Alito Jr. has been drawn to conservative ideas. On the eve of confirmation hearings, the first of two articles looks at the forces that shaped the nominee.

By Dale Russakoff and Jo Becker
Washington Post Staff Writers
Sunday, January 8, 2006

It was May 3, 1971, the crest of the antiwar movement, and Washington was clogged with thousands of denim-and-fatigues-clad protesters demanding an end to the Vietnam War. Blocks from the Capitol, but far from the action, a handful of Princeton University undergraduates in sport coats found themselves in the wood-paneled chambers of Justice John M. Harlan.

Most saw the visit as a detour from their real purpose: to meet generals, lawmakers and diplomats and debate the justness of the war. One young man even dozed off.

But not Samuel A. Alito Jr. Harlan was the one person he wanted to meet when Princeton's politics society arranged the trip. Now the clean-cut young man with dark-rimmed glasses was transfixed by the justice whose dissents from landmark liberal rulings of the Supreme Court had become his guideposts.

"The rest of us didn't grasp Harlan's significance," said George Pieler, then president of the politics society. "The only reason I did was that Sam had told me."

Years later, Alito would write that his distress over the court's liberal activism under Chief Justice Earl Warren in the 1960s had propelled him to study constitutional law. Along the way, he would embrace Harlan's view that the court was usurping power that the Constitution had reserved for lawmakers.

At the time of the visit, this vision was hardly in vogue. After all, it was the Warren Court that had stepped in when legislators would not and declared segregated schools unconstitutional.

But Alito was not one to be swayed by fashion. As protest movements shook the world around him in the 1960s and 1970s, he held fast to the respect for authority he learned growing up in a New Jersey suburb in the 1950s.

Like many conservatives of his generation, Alito was inspired by the presidential campaign of Sen. Barry M. Goldwater (R-Ariz.), stimulated by William F. Buckley Jr.'s National Review, alarmed by the discord over the war in Vietnam and disenchanted with the liberal bias of college campuses.

But rather than turn to activism, he found in the study of law a framework for what troubled him. The early years of his journey were deeply private and intellectual. But he later found company, particularly in the Reagan Justice Department, incubator of scores of leading conservative legal practitioners, including Chief Justice John G. Roberts Jr.

In articles today and tomorrow, The Washington Post will explore the forces, people and ideas that helped shape Alito and hastened his rise in the law. The articles are based on Alito's writings, government documents and more than 100 interviews, including the first extensive one with his family. Like other Supreme Court nominees, Alito did not comment.

The Senate confirmation hearings that begin tomorrow on President Bush's nomination of Alito to the seat of retiring Justice Sandra Day O'Connor represent a milestone not only for him but also for the conservative movement that grew up as he did.

Like Father, Like Son

He was born at mid-century to Italian Americans from the proud, immigrant enclave of Chambersburg in Trenton, N.J.

"When the first baby came, I said, 'Sam, our children are going to be the smartest children in Hamilton Township,' " Rose Alito, now 91, recalled in an interview at the two-story, red-brick home in the Trenton suburb where she and Samuel Alito Sr. raised a Supreme Court nominee.

From the beginning, she said, the boy took after his father, a scholarly and reserved man who directed New Jersey's nonpartisan Office of Legislative Services. Perennially pipe-puffing, with thick white hair that gave him a look of distinction, the elder Alito spoke reverentially of the importance of exhaustive, bias-free research in the making of law.

"It was never about what he felt; it was what the law was," recalled former New Jersey governor Thomas H. Kean (R).

The father ingrained exacting standards in his children. "My father would assist us in learning how to write well," said Rosemary Alito, the nominee's sister. "He'd say, 'No, this is wrong, this is wrong, this is wrong. Go write it again.' And I'd go write it again. And he'd look at it again. And he'd review it and give me corrections until he'd find it to be perfect."

The elder Alito was tight-lipped about his own leanings. Some published reports have said he was a Republican; others, a Democrat. Co-workers said he joked that he was "a political eunuch." Asked for the real story, Rose Alito -- a Republican who was a Democrat until 1987 -- and Rosemary Alito, a Republican and a leading employment lawyer, looked blankly at each other, answering with shrugs.

Alito Senior, whose death in 1987 left his son too distraught to deliver a eulogy, had always vacuumed up knowledge. Before working for the legislature, he taught ancient history, physics, math and English at Trenton Central High and had scored so high on an Army aptitude test it raised suspicions of cheating. Similarly, the younger Alito was so far ahead of peers at Hamilton-East Steinert High School that he skewed the grade curve. And, like his father, he kept a lot to himself.

"He was always listening to students' comments, my comments -- analyzing, evaluating, but silently. Kind of inscrutable at times," said Elaine Tarr, his 10th-grade English teacher.

Classmates still speak of his unusual blend of braininess, modesty and quietly hilarious wit. He played baseball, was a star debater, edited the school paper and was elected student council president with an uncharacteristically wacky campaign using posters of women having their hair colored and the slogan "I'll just DYE if Sam isn't elected. Alito for President."

Behind the gentle demeanor was a boy bent on winning. "Oh yes, very competitive!" said his mother. His rivalry with a champion debater at Trenton Central High named Jeffrey Laurenti was so fierce that Alito would not say his opponent's full name -- a relationship highlighted by the caption beside Alito's yearbook photograph: "Jeffrey Who?"

Friends and family members say Alito embraced the respect for authority that was ubiquitous in the 1950s from home to school to Our Lady of Sorrows Catholic Church. Asked if he ever rebelled, Rosemary Alito exclaimed, "Oh my goodness, he never did anything rebellious at all!"

His middle school Latin teacher, Grace Bolge, said she saw in his passion for that language a love of order and rules. "He liked structure and rigidity," she said. "I think that's why he liked debate. It was timed, it was regulated, there were rules for when you could speak and how you spoke."

The order that defined Alito's early years began to give way in the 1960s. Rose Alito does not remember her reaction as the Second Vatican Council loosened the top-down authority of the Roman Catholic Church. But she made clear her displeasure at another change in religious practice: the 1963 Supreme Court decision banning public school Bible reading and prayer, which began Alito's school days through sixth grade.

"I was teaching then, and it used to irk me," she said. "I read poems that had something to do with the atmosphere and the trees when we were not permitted to read the Bible."

As a federal appellate judge, Alito would repeatedly rule for more religious expression in public spheres.

In 1964, the Supreme Court transformed the legislature that Sam Alito Sr. served, ruling in Reynolds v. Sims that the Constitution required individual legislative districts to have essentially equal numbers of voters -- one man, one vote. The opinion prompted a dissent from Harlan that, according to a friend and former colleague Douglas W. Kmiec, is one of the nominee's favorites.

"The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements," Harlan wrote. "This Court . . . does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the political process."

The elder Alito became the New Jersey legislature's redistricting expert, drawing district lines that shifted power from sparsely populated rural counties to cities and suburbs. In the process, the state Senate turned Democratic for the first time in 52 years. As always, Alito Senior expressed no opinion of the result.

At about this time, politics and government became a fascination for his son, and, according to a job application to the Reagan administration, he was impressed by Goldwater's 1964 presidential campaign, a crusade against communism and Washington's dictates to the states in areas including civil rights and public school prayer. Alito became a regular viewer of Buckley's "Firing Line" television program.

Fellow high school debater James Castranova remembers Alito speaking with enthusiasm about reading Buckley's National Review, the opinion journal credited with helping to launch the modern conservative movement. He also recalled Alito's excitement when then-California Gov. Ronald Reagan, a rising conservative star, was roundly deemed the winner of a 1967 televised debate with then-Sen. Robert F. Kennedy (D-N.Y.).

"He was just fascinated that Reagan was able to get the better of Bobby Kennedy," Castranova said.

Castranova emphasized that Alito never trumpeted his views, lest he jeopardize his father's reputation for impartiality. In the 1968 yearbook of Victor McDonald, a vocal supporter of Richard M. Nixon, Alito teased: "Who will replace you next year as Steinert High School's biggest reactionary? I doubt anybody can be as FAR RIGHT as you."

'Tradition, Order and Authority'

Former Princeton professor Dennis F. Thompson, now at Harvard, remembers a freshman named Sam Alito from 37 years ago for one reason: He was a conservative.

Thompson assigned students in his political theory class to develop a world view of their own, drawing on philosophers. A tide of liberal and left-wing visions rolled in, with a notable exception. "It wasn't conservative in terms of political issues of the day," Thompson recalled of Alito's paper. "It was more about principles -- a respect for tradition, order and authority."

As the antiwar movement engulfed Princeton, Alito stood outside the fray, finding mentors in books and journals of ideas. In the spring of 1970, after the United States invaded Cambodia, students voted overwhelmingly to postpone classes to campaign against the war.

Classmate Richard R. Clifton, now a 9th Circuit appellate judge, remembers Alito had a different concern. Alito thought that a majority vote to suspend classes would be unfair to a minority who wanted to study. "He was very frustrated," Alito's wife, Martha, said he told her. "He wanted his education."

Many students joined selective-admissions dining clubs dominated by sons of the rich, but Alito chose instead the anti-elitist Stevenson Hall (named for Democrat Adlai E. Stevenson), which welcomed all comers. Friends knew Alito as a confirmed anti-snob, flashing a dry, acerbic wit at any sign of pomposity.

He immersed himself in the study of law, history and politics -- and again debate. His closest friends were all, like him, studious majors in Princeton's Woodrow Wilson School who dined at Stevenson, where they were more likely to debate John Rawls's "A Theory of Justice" than Vietnam. Still, "I knew he was greatly bothered by all the upheaval of the '60s," said Ken Burns, now a lawyer in San Francisco.

Alito had a ringside seat on an ambitious student-faculty effort to make Princeton's decision making more responsive to change, to head off student protest. The chairman of the project, professor Stanley Kelley, who knew Alito's academic work, hired him to take notes and do research while passions flared.

The university approved the group's recommendations, giving students much more influence over tenure, curriculum, dorm curfew and other policies. (A conservative alumni group that Alito listed among his affiliations in a 1985 job application, Concerned Alumni of Princeton, would later say the effort had turned Princeton over to left-wing students.) Kelley said Alito never expressed a view of the deliberations.

Samuel Lipsman, an outspoken leftist who headed Princeton's debate panel, knew Alito's leanings, but only because he asked him directly. "I knew he was conservative and he supported the president and defended the war, but he didn't carry signs even metaphorically," said Lipsman, who nominated Alito to succeed him as debate panel president. "He never antagonized."

Alito's good friend and fellow debater, Andrew P. Napolitano, a self-described "notorious campus conservative" and now a Fox News commentator, said Lipsman knew more than he did: "I do not recall hearing a conservative peep out of Sam's mouth."

But in Alito's mind, he would later write, a conservative legal philosophy was forming by his junior year when he read the works of Yale law professor Alexander M. Bickel, a pioneering critic of the Warren Court. At a time when many intellectuals embraced liberal judicial activism as a force for good, Bickel announced in a book titled "The Supreme Court and the Idea of Progress" that the Warren Court's most sacrosanct rulings -- including Brown v. Board of Education and one man, one vote -- were badly reasoned, based not on the Constitution, but on the egalitarian visions of individual justices. A moderate to liberal Democrat, Bickel wrote that no matter how noble the result, this unelected branch was threatening democracy.

Bickel's views ignited profound unease and even fury in intellectual circles, where the Warren Court was seen as having protected individual rights from being trampled by the majority. Yale activists burned Bickel in effigy in 1969.

For Alito, however, discovering Bickel proved a seminal moment. He would write later that he had objected even as a young man to the Warren Court's rulings, particularly on reapportionment, criminal procedure and public school prayer. Bickel specifically critiqued these decisions, arguing that legislatures, not courts, should execute complex social changes, even if they came more slowly. His vision meshed with Alito's desire for orderly change.

His senior year, Alito crossed paths again with his old debating rival, Jeffrey Laurenti, then a graduate student at Princeton. From similar beginnings as Italian American Catholics raised with moral certainty and respect for authority, they had taken different roads. Laurenti had turned against the Vietnam War and the president. "The scales were falling slowly from my eyes. I was groping," he said. "I don't know that Sam was."

Alito was delving into the history and workings of the Supreme Court. Charles A. Miller, then a Princeton assistant professor of constitutional law, said Alito so loved reading Supreme Court opinions that he persuaded the teacher to completely revise the syllabus of one seminar so that he could take it again.

Alito wrote his research paper for Miller on Justice Oliver Wendell Holmes, who once famously had summed up his philosophy of judicial restraint: "If my fellow citizens want to go to hell, I will help them. It's my job."

Miller was amazed by the college senior's ability "to embrace historical, philosophical and political material and modes of reasoning," according to the 1972 law school recommendation he wrote. "The logic and precision that Mr. Alito uses in both oral and written presentation is almost palpable. None of it is aggressive, indeed sometimes it is self-effacing," Miller wrote, using adjectives Alito's admirers use today.

"It's easy to say I'm prescient," said Miller, now retired, "but I think what's more true is this guy is very consistent."

The Calling of the Law

Yale Law School in 1972 was a temple of legal liberalism, and Alito soon began to feel that some professors were giving him an incomplete view of the law. He would later tell his friend Kmiec that he turned to reading extensively on his own.

"There was this note of regret in his voice that very few of them [professors] seemed to be saying things that he could readily agree with," said Kmiec, now a professor at Pepperdine University Law School.

Bickel soon became gravely ill, unable to teach. His devoted friend on the faculty, Robert H. Bork, was carrying the conservative torch, arguing that the only principled way to interpret the Constitution was to stick to the precise words of the Framers and what they meant at that time.

Bork taught that there was no constitutional basis for rights to privacy, abortion, or one man, one vote, and he criticized court-ordered busing to achieve school desegregation as judicial meddling. Classmates do not recall Alito's reaction to Roe v. Wade in 1973, but he would later write that the decision had no basis in the Constitution. Alito's mother has told reporters that he personally opposes abortion; Alito has not commented on his personal views.

Bork said in an interview that he remembers only one student -- John R. Bolton, now the U.S. ambassador to the United Nations -- who then expressed conservative views openly. "The rest of them kept their heads down," Bork said.

Alito's Yale roommate and Princeton classmate Mark Dwyer said his friend had hoped to have Bork for constitutional law, but ended up with Charles Reich, author of an unofficial bible of the protest movement, "The Greening of America."

Alito applied to be a Supreme Court clerk after law school. But, said his wife, Martha, "it was not to be at that time in his life." Instead, he went home to New Jersey to clerk for Appeals Court Judge Leonard I. Garth in Newark, a 3rd Circuit judicial craftsman in the mold of Alito's hero, Justice Harlan.

In contrast to his intellectual estrangement from Yale, Alito found in Garth a sort of father in the law. Former clerks describe him as a judge who asks himself before deciding any case whether an elected branch of government could resolve it instead.

"Judge Garth and Sam had the same philosophy, and they spoke the same language," said Kenneth Prochnow, Alito's co-clerk in 1976 and 1977.

There was another link. Alito's father had testified before Garth as a demographic expert in a 1972 New Jersey reapportionment case. "It was an extraordinary circumstance because rarely do you remember witnesses," Garth said. "But I was terribly impressed with him. I told Sam about it, and I think he was justifiably proud."

Garth, who once rated Alito 16 1/2 out of 10 as a clerk, said they used to buy a bag of peanuts and "take long walks in Newark, just the two of us, hashing out cases."

Alito was back in an orderly world after seven years in liberal cauldrons. He moved home with his parents and assumed the role of lector, or reader, at Sunday Mass at Our Lady of Sorrows.

Prochnow remembers his surprise when he realized after the 1976 presidential election that his co-clerk was a Republican. "Sam was disappointed that Jimmy Carter won," Prochnow said. "That was very strange for me, because in the environment I'd been in since 1968, I don't think I'd met any Republicans," he said, referring to his time at Columbia University and New York University Law School. "I can only imagine what it was like for Sam to have developed and held his philosophy, which must have been a minority and unpopular position, in the environments he'd been in."

Comfortable in the monastic, intellectual world of appeals -- a more solitary and research-oriented practice than the free-for-all of trial work -- Alito went to work after his clerkship in the appellate section of the U.S. attorney's office in Newark. His skills quickly made him the go-to lawyer on the most sensitive cases. One involved a top-secret exchange of two convicted Russian spies for five Russian dissidents. The intricacies kept him in the library for days, plumbing law books, as well as a Russian dictionary.

Near the end of the process, another staffer breezed by him in the library stacks, calling out offhandedly, "Hey, Sam, I heard you learned Russian over the weekend."

Martha Bomgardner, a young librarian in the U.S. attorney's office, overheard his quiet and upright-sounding answer: "I don't think that's something to talk about."

"Oh, this is a smart one," she thought.

She told friends she would marry him by the following April. But he was uncommonly shy, and despite multiple daily trips to the library, did not ask her out for 13 months. "He is judicious," she said recently with a laugh.

They had dated about a year when he got an offer from the U.S. solicitor general. The office is arguably the most respected law firm in the country, representing the U.S. government before the Supreme Court. Alito left for Washington in August 1981. "I thought that would be the end," Bomgardner said.

Four years later, Martha Bomgardner would become Martha Alito and Samuel Alito Jr. would be on a very different course.

Research editor Lucy Shackelford and researcher Madonna Lebling contributed to this report.

View all comments that have been posted about this article.

© 2006 The Washington Post Company