Analysis

A Right Cautious Nominee

Joseph R. Biden Jr., seated, and other Democratic senators talk during a break in the Alito confirmation hearings.
Joseph R. Biden Jr., seated, and other Democratic senators talk during a break in the Alito confirmation hearings. (Photos By Melina Mara -- The Washington Post)

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By Charles Lane
Washington Post Staff Writer
Friday, January 13, 2006

Samuel A. Alito Jr. did everything he could do to avoid saying how he would rule on the big issues that might come before the Supreme Court if, as now seems likely, he is confirmed by the Senate and succeeds Sandra Day O'Connor.

Yet even his cautious answers to questions from the Senate Judiciary Committee contained evidence that the court could shift to the right once the federal appellate judge takes O'Connor's seat.

Though he distanced himself from his youthful expressions of support for the conservative Concerned Alumni of Princeton and the ill-fated nomination of Robert H. Bork to the Supreme Court in 1987, Alito, 55, stood by the generally conservative opinions he has written as an appellate judge. When Democrats repeatedly sought to portray those decisions as insensitive to the rights and concerns of minorities or working-class people, Alito explained why he thought the law had required him to rule as he did.

And when Alito described his personal history, his comments revealed a man whose conservatism developed not only in the cool corridors of a law library but also in the heated backlash against the perceived excesses of 1960s and 1970s liberalism.

Alito could thus form a relatively solid conservative bloc with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas. The court has four liberal-leaning members: Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

That would leave Justice Anthony M. Kennedy, an appointee of President Ronald Reagan, as the swing voter. Kennedy has compiled a record of conservatism punctuated by votes in favor of gay rights and reaffirming Roe v. Wade.

"Both Alito and Roberts fall closer to Scalia and Thomas than they do to O'Connor," said David J. Garrow, a Supreme Court historian at Cambridge University in England.

Many of the issues that dominated the hearings are already on the court's agenda, or could be soon. One abortion case has been argued during the current term, but no decision has been issued; a case on the federal "partial birth" abortion ban is pending. If, as expected, Alito is sworn in by February, he could well be asked to participate in both of them.

Also, the court has been asked to rule on military trials for detainees at Guantanamo Bay and on President Bush's detention of a U.S. citizen, Jose Padilla, as an "enemy combatant." The court has not decided whether to take the cases.

Alito's arrival on the Supreme Court would mean that, in place of a 75-year-old Western woman who grew up on a cattle ranch, met with gender discrimination in her first job search, and then served as a state legislator and trial court judge, the court will be adding a white ethnic male from the industrial Northeast who has spent the past 15 years in the wonkish world of the federal appellate bench.

There would still be at least five justices on the court who favor Roe . But whereas O'Connor's pragmatic concerns about possible social unrest and harm to women from undoing Roe v. Wade trumped her doubts about the decision's constitutional validity, Alito is still a question mark on abortion rights. He acknowledges that he opposed Roe in the past, but he has compiled a mixed record on abortion as a judge and pledged to approach the issue with an "open mind" and full respect for the Roe precedent.

Alito's answers on Roe left him as much wiggle room as the slightly differently worded statements Roberts made at his confirmation hearings, said John Q. Barrett, a professor of constitutional law at St. John's University. "Neither one," Barrett said, "made a commitment . . . to any particular version of abortion rights."


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