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."
O'Connor's conservatism, with its accent on states' rights, is rooted in the Western Sagebrush Rebellion against Washington. Alito's seems to have originated at least in part in the backlash against liberalism in Ivy League universities.
In his opening statement, Alito -- like Scalia, the son of an intellectually gifted Italian American -- spoke in a voice no less intelligent than, but culturally distinct from, that of Roberts, the private-school-educated son of a Midwestern steel executive.
Indeed, Alito sounded a bit like one of the millions of culturally conservative urban ethnic voters who deserted the Democratic Party in favor of Reagan after the upheaval of the 1960s.
As a public high school product on Princeton's campus in the late 1960s and early '70s, Alito said, "I saw some very smart people and very privileged people behaving irresponsibly. And I couldn't help making a contrast between some of the worst of what I saw on the campus, and the good sense and the decency of the people back in my own community."
In terms that still evinced some of the dismay he must have felt at the time, Alito spoke of his concern over the expulsion of his ROTC unit from Princeton, which forced him to take his military classes at Trenton State. That "bothered me for a long time," he said. It was "a very bad thing for Princeton to do."
The hearings showed that Alito's involvement in the conservative Concerned Alumni of Princeton was peripheral to his career -- but that perhaps the feelings that drove him to affiliate with it, however superficially, were not.
His lingering unhappiness about the "bad" decisions made by his prestigious alma mater contrasts with the attitude O'Connor showed toward elite schools and their leaders in 2003, when she cast the deciding vote to uphold affirmative action in higher education.
"Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions," she wrote. Her opinion approvingly cited a pro-affirmative-action book co-written by William G. Bowen, who was provost of Princeton during Alito's student years and was the school's president at the time CAP was formed.
Asked about his reference to "traditional values" in a 1985 job application letter to Attorney General Edwin I. Meese III, Alito replied in terms that again idealized the safe streets of his boyhood.
"I think a traditional value that I probably had in mind was the ability to live in peace and safety in your neighborhood," the former federal prosecutor said. "And that was a big issue during the time of the Warren court, and it was still a big issue in 1985 when I wrote that statement because that was a time of very high crime rates. I think that's a traditional value."
Still, like Roberts, Alito did not embrace some of the most controversial legal views of Scalia and Thomas.
Scalia has said that the Supreme Court should interpret only the literal text of statutes and the Constitution, and not search historical records for evidence of their authors' intent.
But Alito said: "I'm not one of the judges who thinks that . . . you should never look to legislative history. I think it has its place."
And Alito put much greater emphasis on precedent than does Thomas, who has called for overruling decisions that clash with his view of the Constitution's literal meaning.
Stare decisis , the notion that past decisions generally should be followed to avoid legal instability, "is not an inexorable command," Alito said. But long-standing decisions such as Roe should not be overturned absent some "special justification," he said.