High Court's Newbie Rounds the Learning Curve

By Dana Milbank
Wednesday, February 22, 2006

It was Samuel Alito's first day of school yesterday, and the new Supreme Court justice demonstrated himself to be a precocious, if sometimes too enthusiastic, pupil.

In his first day on the bench, Alito laughed obligingly at Justice Antonin Scalia's joke about river discharge. He stroked his chin thoughtfully and rocked in his chair, just as the more senior justices do. The eight questions he asked -- on the finer points of the Clean Water Act and the Federal Energy Regulatory Commission -- put him on course to surpass within days the total number of questions Justice Clarence Thomas has asked in 15 years.

The new student had some awkward moments as he adjusted to his surroundings. He tried to talk at the same time as 85-year-old Justice John Paul Stevens, then quickly backed down. He continued the questioning of a government lawyer after the time for the argument had expired. And, in his haste to depart the chamber, he forgot the rules of seniority and stepped in front of Justice Ruth Bader Ginsburg; the 72-year-old Clinton appointee was uninjured.

The high court has a new associate justice -- but Alito is not preparing for a long apprenticeship. He sent a bold signal in his hiring of law clerks: One, Adam Ciongoli, was an aide to former attorney general John Ashcroft and helped design administration policy on military tribunals and terrorism detainees. And the court's decision yesterday to hear a case about "partial birth" abortion will put Alito at the center of a dispute in which his predecessor, Sandra Day O'Connor, cast the deciding vote.

Alito's first day on the bench came as the court was hearing two big environmental cases, and the line for tickets stretched across the Supreme Court plaza and up Maryland Avenue. Inside, the justices engaged in an elaborate round of musical chairs to reflect O'Connor's departure. Scalia moved from seat four on the left to seat three on the right. Anthony Kennedy took over seat four, which sent David Souter to seat five on the right. With Souter in seat five, Thomas moved up to six on the left, while Ginsburg claimed seat seven on the right and Stephen Breyer decamped for seat eight, right near the press gallery. Alito, in seat nine on the far right, rested his chin on his fist, and rotated his head to take in the whole crowd.

As oral arguments started, Alito adopted a studious frown as the lawyer for a shopping-mall developer explained why the Clean Water Act didn't apply to him. Within seconds, Scalia interrupted to declare his agreement with the builder. Ginsburg broke in to make clear her opposition. Then, without waiting for the other six, Alito jumped in.

"Does it make sense," he wondered, that "a tributary that leads into navigable water is not necessarily covered?" Souter quickly agreed with Alito's line of questioning, suggesting "evil polluters" were trying to evade the law.

It might have been an anxious moment for the new justice's supporters. Was Alito, so recently championed by the right wing, siding with Ginsburg and Souter against Scalia? Or was he merely playing the devil's advocate, as justices often do? Alito, resting his face in his left hand, his pinky on his lips, gave no further clues. For the next hour, he sat silently while his colleagues debated fiercely.

Stevens called an argument made by the property owners "sort of foolish." Alito reached for his silver coffee mug. Scalia ridiculed the government argument that land "becomes water of the United States because there are puddles on it." Alito scratched his head.

Alito found his voice in the second hearing, a less important dispute about discharge from dams. He shared a private joke with Ginsburg, apparently at the expense of a clearly nervous petitioner. After Kennedy and Chief Justice John Roberts asked questions, Alito piped up with a question -- but quickly silenced himself when he discovered Stevens had the floor. He sipped from his mug, rested chin in hand, and bided his time -- finally seizing the floor after a Breyer soliloquy.

Alito poked a hole in the dam owner's argument that the state government was interfering with federal regulators. Next, he dissected the lawyer's argument that a river -- in this case, Maine's Presumpscot River -- cannot "discharge" into itself.

"Is it fair to say the Missouri River discharges into the Mississippi River?" Alito asked. Securing an affirmative answer, he pointed out: "They're two water bodies only because people gave them two different names." The lawyer attempted to recover, but Alito cut him off, pointing out that the law doesn't stipulate "discharge from one water body into another."

A few of the justices looked over at their new colleague for the first time. Alito rocked in his chair, allowing himself a celebratory sip from his coffee mug. When lawyers for the government made their side of the case, Alito returned with a tricky hypothetical: "Could you," he asked Maine's attorney general, "adopt water standards that make any hydroelectric power illegal?"

By the time Justice Department lawyer Jeffrey Minear spoke, Alito was so engaged in the argument that, not noticing the time clock had expired, he set off a chain reaction of awkwardness.

Alito directed a complex question about states' rights to Minear. Minear tried to squeeze in a brief answer. Roberts banged the gavel. And, before Ginsburg knew what had happened, Alito vanished behind the curtains.


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