Transcript: President Bush Announces Alito Nomination

PRESIDENT BUSH HOLDS MEDIA AVAILABILITY TO ANNOUNCE HIS NOMINEE FOR THE U.S. SUPREME COURT

SPEAKERS: GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES

JUDGE SAMUEL A. ALITO JR., SUPREME COURT NOMINEE

[*]

BUSH: Good morning.

I'm pleased to announce my nomination of Judge Samuel A. Alito Jr. as associate justice of the Supreme Court of the United States.

Judge Alito is one of the most accomplished and respected judges in America. And his long career in public service has given him an extraordinary breadth of experience.

As a Justice Department official, federal prosecutor and judge on the United States Court of Appeals, Sam Alito has shown a mastery of the law, a deep commitment of justice, and he is a man of enormous character.

He is scholarly, fair-minded and principled, and these qualities will serve our nation well on the highest court of the land.

Judge Alito showed great promise from the beginning in studies at Princeton and Yale Law School, as editor of the "Yale Law Journal," as a clerk for a federal court of appeals judge.

BUSH: He served in the Army Reserves and was honorably discharged as a captain.

Early in his career, Sam Alito worked as a federal prosecutor and handled criminal and civil matters for the United States. As assistant to the solicitor general, he argued 12 cases before the Supreme Court, and has argued dozens of others before the federal courts of appeals.

He served in the Justice Department's Office of Legal Counsel, providing constitutional advice for the president and the executive branch.

BUSH: In 1987, President Ronald Reagan named him the United States attorney for the District of New Jersey, the top prosecutor in one of the nation's largest federal districts. And he was confirmed by unanimous consent by the Senate.

He moved aggressively against white collar and environmental crimes, and drug trafficking and organized crime and violation of civil rights.

In his role, Sam Alito showed a passionate commitment to the rule of law, and he gained a reputation for being both tough and fair.

In 1990, President Bush nominated Sam Alito, at the age of 39, for the United States Court of Appeals for the 3rd Circuit.

BUSH: Judge Alito's nomination received bipartisan support and he was again confirmed by the unanimous consent by the United States Senate.

Judge Alito has served with distinction on that court for 15 years, and now has more prior judicial experience than any Supreme Court nominee in more than 70 years.

Judge Alito's reputation has only grown over the span of his service.

He has participated in thousands of appeals and authored hundreds of opinions. This record reveals a thoughtful judge who considers the legal merits carefully and applies the law in a principled fashion.

BUSH: He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.

In the performance of his duties, Judge Alito has gained the respect of his colleagues and attorneys for his brilliance and decency. He's won admirers across the political spectrum.

I'm confident that the United States Senate will be impressed by Judge Alito's distinguished record, his measured judicial temperament and his tremendous personal integrity. And I urge the Senate to act promptly on this important nomination so that an up-or-down vote is held before the end of this year.

BUSH: Today, Judge Alito is joined by his wife, Martha, who was a law librarian when he first met her. Sam and I both know you can't go wrong marrying a librarian.

Sam and Martha's two children, Phil and Laura, are also with us.

And I know how proud you are of your dad today.

I'm sure, as well, that Judge Alito is thinking of his mom, Rose, who will be 91 in December. And I know he's thinking about his late father. Samuel Alito Sr. came to this country as a immigrant from Italy in 1914. And his fine family has realized the great promise of our country.

Judge, thanks for agreeing to serve. And congratulations on your nomination.

ALITO: Thank you very much, Mr. President. I am deeply honored to be nominated to serve on the Supreme Court. And I am very grateful for the confidence that you have shown in me.

The Supreme Court is an institution that I have long held in reverence. During my 29 years as a public servant, I've had the opportunity to view the Supreme Court from a variety of perspectives: as an attorney in the Solicitor General's Office, arguing and briefing cases before the Supreme Court, as a federal prosecutor and, most recently, for the last 15 years, as a judge of the court of appeals.

ALITO: During all of that time, my appreciation of the vital role that the Supreme Court plays in our constitutional system has greatly deepened.

I argued my first case before the Supreme Court in 1982, and I still vividly recall that day. I remember the sense of awe that I felt when I stepped up to the lectern, and I also remember the relief that I felt when Justice O'Connor, sensing, I think, that I was a rookie, made sure that first question that I was asked was a kind one.

I was grateful to her on that happy occasion, and I'm particularly honored to be nominated for her seat.

My most recent visit to the Supreme Court building was on a very different and a very sad occasion. It was on the occasion of the funeral of Chief Justice William Rehnquist.

And as I approached the Supreme Court building with a group of other federal judges, I was struck by the same sense of awe that I had felt back in 1982; not because of the imposing and beautiful building in which the Supreme Court is housed, but because of what the building and, more importantly, the institution stand for: our dedication, as a free and open society, to liberty and opportunity and, as it says above the entrance to the Supreme Court, equal justice under law.

ALITO: Every time that I have entered the courtroom during the past 15 years, I have been mindful of the solemn responsibility that goes with service as a federal judge. Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system.

And I pledge that, if confirmed, I will do everything within my power to fulfill that responsibility.

I owe a great deal to many people who have taught me over the years about the law and about judging, to judges before whom I have appeared and to colleagues who have shown me, with their examples, what it means to be a fair and conscientious and temperate judge.

ALITO: I also owe a great deal, of course, to the members of my family.

I wish that my father had lived to see this day. He was an extraordinary man who came to the United States as a young child and overcame many difficulties and made many sacrifices so that my sister and I would have opportunities that he did not enjoy.

As the president mentioned, my mother will be celebrating her 91st birthday next month. She was a pioneering and very dedicated public school teacher who inspired my sister and me with the love of learning.

My wife, Martha, has been a constant source of love and support for the past 20 years.

My children, Philip and Laura (ph), are the pride of my life. And they have made sure that being a judge has never gone to my head. They do that very well on a pretty much daily basis.

ALITO: And my sister, Rosemary, has always been a great friend and an inspiration as a great lawyer and as a strong and independent person.

I look forward to working with the Senate in the confirmation process.

Mr. President, thank you once again for the confidence that you've shown in me and for honoring me with this nomination.

END

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Transcript: Sen. Schumer's Remarks on Alito Nomination

SENATOR SCHUMER HOLDS A NEWS CONFERENCE ON THE NOMINATION OF JUDGE ALITO TO THE SUPREME COURT

SPEAKER: U.S. SENATOR CHARLES SCHUMER (D-NY)

[*]

SCHUMER: Good morning, everybody.

This morning I went and visited Rosa Parks in the Capitol Rotunda to pay my respects.

Being in the presence of Ms. Parks was awe-inspiring. This was a woman who changed history with one thin dime. She paid her fare and took her rightful seat on the bus and America was never the same again.

Like Rosa Parks, Judge Alito will be able to change history by virtue of where he sits. The real question today is whether Judge Alito would use his seat on the bench, just as Rosa Parks used her seat on the bus, to change history for the better or whether he would use that seat to reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place.

Judge Alito's visit to Rosa Parks this morning was appropriate. His record, as I'm sure Rosa Parks would agree, is much more important.

A preliminary review of his record raises real questions about Judge Alito's judicial philosophy and his commitment to civil rights, workers' rights, women's rights, the rights of average Americans which the courts have always looked out for.

Now, it's sad that the president felt he had to pick a nominee likely to divide America instead of choosing a nominee in the mold of Sandra Day O'Connor who would unify us.

America needs unity now. America needs reaching out to one another more than ever. But the president seems to want to hunker down in his bunker and is more concerned about smoothing the ruffled feathers of the extreme wing of his party than about governing all of America and changing history for the better.

SCHUMER: This controversial nominee, who would make the court less diverse and far more conservative, will get very careful scrutiny from the Senate and the American people.

The president had an opportunity to nominate someone in the mold of Sandra Day O'Connor, a mainstream, albeit conservative, who would unite the country, not further decide us. At first blush, Judge Alito does not appear to be a Sandra Day O'Connor.

It is an immutable law of history that when a president tries to govern from the extreme, his presidency and the country end up losing. Democrats learned this when we governed from the far left. President Bush will learn this as well.

As for Judge Alito, there is still a lot to be learned about him. Many of the opinions that he has written over the last 15 years cast real doubt on whether he can be a fair, mainstream, albeit conservative, judge who strives to protect the rights of all Americans, instead of a judge who will use his power to restrict those rights and legislate from the bench.

Now a word about timing. I know that the president and his supporters have suggested we need to rush a hearing and a vote by the end of this year. When there is a controversial nominee for a pivotal swing vote on the high court, the procedure should not be short- circuited, short-changed or rushed.

We need to be careful here.

SCHUMER: This is a nominee who could shift the balance of the court, and thus the laws of the nation, for decades to come.

As I said, there is much to be learned. We need to review his 15 years of judicial opinions. There will be thousands of documents from his time in the Reagan administration, just like there were with John Roberts. And like with Judge Roberts, it will take time to assemble those documents from the Reagan Library and review them.

We will need to review these documents and perhaps take testimony regarding his time as a prosecutor and as a Reagan Justice Department official.

The documents will require particularly close scrutiny given that Judge Alito has been nominated for such a crucial swing vote on the court.

We will also need to meet Judge Alito personally and we'll need thorough, fair, full hearings.

So there's a lot to fit in between now and Christmas, particularly when there is so much else to do on behalf of the American people before this session of Congress is complete.

No one should seek to delay this process for the sake of delay. But even more importantly, no one should seek to rush these hearings through simply to make a point, distract from other issues of the day or avoid a thorough review of this nominee.

Ready for your questions.

QUESTION: Why do you think the president nominated Judge Alito?

SCHUMER: Well, as I said, I think that the president received so much criticism from the extreme wing of his party that he felt, in his position right now, that he couldn't afford to alienate them further. And they demanded fidelity to their viewpoint.

That's what it appears but we'll have to give a thorough review of Judge Alito.

QUESTION: Senator, is ideology a fair consideration in your judgment of this individual? How does it inform the possibility of the nuclear option being triggered?

SCHUMER: Well, first, for three years I've been arguing that judicial philosophy and ideology make a real difference. In the nomination of Harriet Miers, many of my colleagues in the Senate of a far different philosophy than me agreed. So I think that issue was pretty much settled.

And knowing his judicial philosophy, knowing his ideology are going to be extremely important particularly in light of the fact that this is a swing vote.

QUESTION: Senator, can you confirm the (OFF-MIKE)

SCHUMER: Well, that's much to early to tell. As I said, I do not want to see the process short-circuited or rushed.

SCHUMER: Sandra Day O'Connor has said she will serve until the position is filled. Judge Alito is 55. He'll be on the court likely for many decades. And to rush this hearing would be a very big mistake and I think would show the American people that there's not an interest in seeing all the facts come out.

QUESTION: (OFF-MIKE)

SCHUMER: Well, you know, I always like to wait to review the nominee's record, meet with the nominee and then have hearings. I have not taken a position on the two Supreme Court nominees until after the hearings. I didn't get a chance to on Harriet Miers.

But the initial review of Judge Alito's record shows that there's a real chance that he will, like Justice Scalia, choose to make law rather than interpret law and move the court in a direction quite different than it has gone.

And so there are a lot of questions about Judge Alito that require a full hearing.

QUESTION: Senator, what specifically did you see in the preliminary review...

SCHUMER: Well, as I said, it's civil rights, it's workers' rights, it's women's rights, it's the power of the executive, it's issue after issue after issue. There's not just one isolated strain.

I would say this: There are certain cases that go in the other direction too.

SCHUMER: It's not a record that is just 100 percent one way, but it certainly raises a large number of questions.

I'm not going to get into the specific cases right.

QUESTION: Senator, why are you confident you're going to get any records from the Reagan years, since he was in the Solicitor General's Office for four years and the White House refused to turn over documents from Roberts on that, and he was in the OLC, the Office of Legal Counsel, which is de facto like the Solicitor General's Office?

SCHUMER: Well, I think that, given that it was a long time ago, and particularly the OLC records, he didn't have the position that John Roberts had in the Solicitor General's Office, which they claimed was a policy-making position.

I think it would be a real reversal if they were to say that we couldn't get any of the records from Judge Alito's days in the administration, a reversal from what they did with Judge Roberts and with others.

QUESTION: Senator, you're critical of this nomination because you say he is not like Sandra Day O'Connor and he would move the court to the right.

What's your general rule here: that president's should maintain the existing...

SCHUMER: My rule is a very simple one.

QUESTION: And how does that fit with what President Clinton did?

SCHUMER: OK. My rule is this. I understand that the president isn't going to nominate someone who would agree with me on every issue. I voted for close to 200 judges that that president has nominated who don't.

My criteria is the same as it's always been: A judge should interpret the law, not make it. There are judges at the extremes, because they are so passionate in what they believe, who seek to actually make law from the bench.

The irony is, the conservative movement on the judiciary, which arose in reaction to judges on the left making law -- and they did -- is now doing the same thing, just from the right.

SCHUMER: They can call it what you will, but that's exactly what's happening.

QUESTION: What's more a realistic timeline, given your concerns about December? You think January, February?

SCHUMER: Well, you know, certainly don't delay for delay's sake but don't rush it either. We need to get the documents, especially from early on. We need to study his record. We need to meet with him.

If the schedule is such that we're getting out of here in Thanksgiving, I don't think coming back for a day and voting on him in January makes too much sense.

I'd say this is a more serious decision than the vote on Judge Roberts, because Sandra Day O'Connor is such a swing vote. And there should not be a procedural rush here.

QUESTION: He's been compared to Antonin Scalia. Does that bother you?

SCHUMER: Well, what would bother me is somebody who would want to make law. And that is a standard that I think most Americans don't want.

I've always said that a good Supreme Court would have one Scalia and one Brennan but not five of either. The question is, is the president attempting to get five Scalias on the court.

QUESTION: So are you saying, Senator, that he is an activist judge?

SCHUMER: Well, I am saying that I find portions of his significant portions of his record very troubling in terms of him turning the clock back and wanting to make law not interpret. But I'm withholding judgment till I meet him, till I see the -- withholding final judgment, and giving some preliminary impressions as I've done on others.

QUESTION: (OFF-MIKE) is there anything that you know now that (OFF-MIKE)

SCHUMER: It's too early to tell.

SCHUMER: Nothing is on the table and nothing is off the table. Let's learn more about Judge Alito.

The one thing we do know is that the president was at a decisive point. He could have chosen a unifying nominee or he could have chosen somebody who would please the very extreme groups who didn't like Harriet Miers. And he chose the second course.

I don't think that's good for America. And, frankly, I don't think that's good for the president, whatever the outcome of the vote here.

QUESTION: Senator, can you compare the political climate if there were to be a filibuster, nuclear option, today versus June or July? Is the president's weakened state perhaps with some of the issues in the news these days something that gives you more hope if there were a filibuster (inaudible) nuclear option?

SCHUMER: Well, you know, again, I'm not going to get into speculating on into the future.

I think that the initial reaction of myself and most Democrats is the president missed a real opportunity here to unify the country. And the one thing we insist on is that we really get to know who Judge Alito is, that this not be rushed. And then we'll cross that bridge when we come to it.

As I said, nothing is on the table, nothing is off the table.

QUESTION: Senator, have you talked to any of our Democratic colleagues who signed on to the compromise that staved off the nuclear option last time and got...

SCHUMER: Well, I've talked to them a lot of times. Not this morning but, again, I think that was a very good thing because it staved off the nuclear option but it probably has 14 interpretations. And we'll have to see how each person decides to interpret it.

Thank you. Last question.

QUESTION: (OFF-MIKE) you're kind of bracing and getting ready for the nuclear option, sir?

SCHUMER: No. I mean, I've been talking about judicial philosophy, judicial ideology for three years. I've said it's important for every judge, Democrat, Republican and on into the future.

You know, maybe we'll come to a day when neither the left or right will seek to use the judiciary to make law.

SCHUMER: We're not there now and that's why ideology is important. And the president himself has said ideology is part of his test. And so I think it's only fair for it to be for everybody else too.

QUESTION: (OFF-MIKE)

SCHUMER: It was much too early to tell. Obviously, there were troubles but -- I just remind you -- not a single Democrat said they were voting against her, not a single Democrat called for her withdrawal.

When Harriet Miers stepped down, it was because the hard right did not want her. And the president should not be governing simply by listening to a small group of people at one extreme.

Thank you.

END

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Transcript: Sen. Specter Discusses Alito Nomination

SENATOR SPECTER HOLDS A NEWS CONFERENCE ON THE NOMINATION OF JUDGE ALITO TO THE U.S. SUPREME COURT

SPEAKER: U.S. SENATOR ARLEN SPECTER (R-PA). SPECTER IS CHAIRMAN OF THE JUDICIARY COMMITTEE.

[*]

SPECTER: Afternoon. How you all doing?

I met for about an hour and a quarter this morning with Judge Samuel Alito, whom I have known for the better part of two decades. We talked about a wide variety of issues which will come before the Judiciary Committee during his hearings.

I start with his statement that he believes there is a right to privacy under the liberty clause of the United States Constitution. And he believes that the right applied to singles as well as married under the interpretation of Griswold v. Connecticut. And he says that he accepts Griswold v. Connecticut as good law.

We talked a considerable extent about the value of precedence or stare decisis, to let the decision stand, which is a key factor, as you all know, on evaluating Roe.

I raised with him a question about super precedents, which we took up in the hearings for Judge Roberts -- Chief Justice Roberts -- and the super-duper precedents which I added in on the basis of some 38 cases where the Supreme Court has had an opportunity to overrule Roe and has not done so.

There was an interesting article in the New York Times yesterday about where super precedents are going and super-duper precedents are going, and Judge Alito did not endorse super precedents or super-duper precedents, but did say that he viewed it as a sliding scale, and that the longer a decision was in effect and the more times that it had been reaffirmed by different courts, different justices appointed by different presidents, it had extra precedential value.

He brings to this nomination a very longstanding record in public service. He clerked immediately after graduation from the Yale Law School. He was valedictorian of his high school class. He had high marks at Princeton, had high marks at Yale. He was on the Yale Law Journal, and you'll pardon me for just a moment, I think that's a qualification.

And after being a clerk, he was an assistant United States attorney, and then he was in the solicitor general's office, and then a United States attorney. And for 15 years he has been a judge on the Court of Appeals for the 3rd Circuit.

He comes highly recommended by his colleagues on the 3rd Circuit. As I say, I have known him, not well, but known him to some extent for the better part of 20 years, and we will proceed with very thorough, incisive hearings on Judge Alito in what we have come to call a dignified and professional way.

SPECTER: And they will be, as I say, very, very thorough.

The timing is something which is now under consideration. I met with Senator Leahy this afternoon, and we talked about the timing.

Judge Alito brings with him a very extensive record, so-called paper trail. He estimates that he decided or was involved in the decisions on some 250 cases a year. Over 15 years, that would add up to 3,750 cases.

He estimates that he has some 300 opinions. That's a fair amount of work to review.

The White House, as you know, is interested in having the matter concluded by the end of the year. I do not know that that is realistic. I do not know that that is unrealistic.

What I do know is that we're going to do it right, and we're not necessarily going to do it fast.

If it can be done within the time frame by the end of the year and done properly with an opportunity to review Judge Alito's record and have the kind of hearings that are necessary for this kind of a very, very key position -- you hear it said often, but frankly not too often, that short of a declaration of war, the most important function of the United States Senate is the confirmation of U.S. Supreme court justice for lifetime terms.

They make the decision on the cutting edges of all of the big questions in our society.

As things have evolved, the Congress punts to the court, the executive branch punts to the court. And they have lifetime tenure and independence, and they have come somehow in our society to take on those cutting edge questions. So it is very, very important.

I'm a little disturbed to see that within minutes, an hour or so after the submission by the president of Judge Alito's name, that all ready there are criticisms, criticisms coming from people who can't possibly have reviewed his record.

SPECTER: And I think he is entitled to an opportunity to be heard and not to have people condemn or criticize when there's obviously an insufficient basis for doing so.

He has the dissent in the Court of Appeals for the 3rd Circuit on Casey v. Planned Parenthood, on the narrow grounds already publicized, upholding the Pennsylvania legislative determination to require notice to a husband -- a very narrow ruling, very carefully crafted on the basis of Justice O'Connor's decisions in previous cases about what would constitute an undue burden for the woman.

He joined in a decision striking down a partial birth abortion statute from New Jersey. That was in the context where it had been decided by the Supreme Court, but that was his decision.

In reviewing some of his cases, one which came to mind had some elements of humor and some elements of looking out for the little guy.

He sat on the panel of the 3rd Circuit which reviewed a decision by the Social Security Administration denying disability to an individual, saying that the individual could get a job as an elevator operator.

The Court of Appeals, the opinion which he wrote, said there weren't jobs available as elevator operators -- they're automatic, as you all know, because you got to the third floor here.

And the lead question when the case got to the Supreme Court was by Justice Scalia, who noted that the Supreme Court had an elevator with an elevator operator.

SPECTER: And the lawyer for the social security applicant said: Well, I've already given my card to try to look into that possibility. And Judge Alito was reversed nine to nothing.

But I thought it was an interesting case about how, although there is customary deference given to administrative agency decisions, that Judge Alito was disposed to look out for the interest of the applicant who was seeking a disability claim.

There's a great deal more which can be said, but I know that you're patiently awaiting the start of the hearings.

Questions?

QUESTION: Senator, your Democratic colleagues, Senators Reid and Leahy, said they weren't consulted about this nomination. Do you think that will make it harder for Judge Alito to get confirmed?

And when were you informed of the president's decision?

SPECTER: I was told of it about 6:50 this morning.

With respect to consultation, the president has met with Senator Reid and Senator Leahy, Senator Frist and myself on two occasions, well-publicized occasions, and discussed with those leaders from the Democratic Party the process.

And the president, as you know, was anxious to proceed and to move ahead. I think there has been more consultation on this nomination than on most of the others.

SPECTER: Consultation is always desirable. I don't know that there's ever enough consultation. But the president has been open to suggestions by senators, including Democratic senators, on who they would like to see nominated.

I don't know that it will make a whole lot of difference. I don't know that it made a whole lot of difference with Chief Justice Roberts. I don't know that it would have made any difference with White House Counsel Harriet Miers.

QUESTION: There seems to be more criticism on this nomination, though, than on the other two.

SPECTER: More criticism on this nomination than the other two? I'll tell you why that is. Do you want to know why that is? Because this is now, and we've pretty much forgotten about what happened last week.

Things happen so fast around here.

QUESTION: Senator Specter, if I could follow on her question, you said you've known him for over two decades. Did the White House specifically ask you about this nominee before they announced it?

SPECTER: The White House, yes, they did, along with quite a number of other prospective nominees. I was consulted in my capacity as chairman of the committee. And Judge Alito was among those who were mentioned by the White House officials with whom I conferred as to the possibility of selection.

QUESTION: You gave him a good recommendation, that he would probably be confirmed?

SPECTER: Did I give him a good recommendation or say that he'd probably be confirmed? I don't make book on these nominees as to what's going to happen.

And I told them what I knew. But I've stayed out of the line of making recommendations. It is true that the advice and consent function would leave a senator free to give advice which is separate from consenting, but I think the freedom of the chairman and the independence is better protected by not making recommendations -- to take a look, to make inquiries, tell them what I know, but not to be a recommender.

QUESTION: His critics have focused on a 1996 decision in which he said the commerce clause did not allow Congress to regulate the sale of machine guns within one state.

QUESTION: Since the commerce clause is a big issue with the Roberts nomination, do you have any thoughts on that, that case?

SPECTER: Sure.

That case followed on the heels of Lopez, where the Supreme Court of the United States had struck down a gun case in a school district because the Supreme Court decided the commerce clause did not authorize Congress to make that judgment.

And Judge Alito's opinion, as I understand it, because I haven't had an opportunity to study the opinion yet, but I know of the opinion. And it was crafted on the basis of not a congressional finding and no record. It was very, very narrowly tailored.

QUESTION: Given what you know so far about Judge Alito, there is a lot of talk this year about ideologues. Do you think -- can you say now that you don't think that Judge Alito is an ideologue?

SPECTER: I have no reason to categorize him as an ideologue. People who have worked with him on the Court of Appeals, who know him well, say he is not an ideologue.

But I'm not about to make a judgment on that or anything else until I have a chance to read his opinions.

QUESTION: How central will the dissenting opinion in the Casey case be in the decision-making process going forward? And do you think his opinions on abortion are clear at this point, as some groups are suggesting?

SPECTER: How important will his dissent in Casey will be?

I think it will be a factor. His dissent in Casey does not signify disagreement with Roe v. Wade. The joint opinion by the Supreme Court of the United States in Casey upheld Roe but permitted certain limitations on parental notification, on a waiting period.

SPECTER: And this was one of quite a number of limitations which the Pennsylvania legislature had imposed, but still consistent with upholding Roe v. Wade. So there's nothing in his dissent which suggests disagreement with the underlying decision in Roe v. Wade. But I'm sure it'll be a subject of discussion at the hearings.

QUESTION: Since you've known him for so long, can you compare and contrast just personally or philosophically his views as to those of Scalia?

SPECTER: Well, I don't think there is any basis for the derision on the name which has been affixed to him that is in some of the literature anonymously being circulated against him.

The comment "Scalito," which I think is inappropriate for many reasons, which I'd prefer not to go into, came in an early article written about him when he joined the 3rd Circuit, and it made a catchy phrase.

I've been on the other end of a lot of catchy phrases I don't care too much for. If they have something to say about his decisions in a specific basis, I'd be pleased to see that. But to have that kind of a term of derision I think is out of line.

QUESTION: Can you talk at all about the differences between the two? Are they two different justices?

SPECTER: Oh, I think they're considerably different. There's been no showing except for that derisive phrase and ethnic origin as to similarities.

SPECTER: So let's read the opinions. I've read enough of Justice Scalia's opinions. I'd like to read some others for a change.

QUESTION: Given that some Democrats came out so quickly this morning against him, are you concerned that that might lead to a filibuster?

SPECTER: Well, I'm always concerned about a filibuster. But I think that Judge Alito's record hardly measures up to the standard that the Gang of 14 had of extraordinary circumstances. I think it hardly does that.

QUESTION: How did Judge Alito's comments about super precedents and super-duper precedents differ from Judge Roberts'?

SPECTER: Well, Judge Alito said a little more than Judge Roberts said. But, then, Judge Roberts ducked super precedents and he ducked super-duper precedents.

And in the informal meeting I had with him, I asked him a pop quiz. I said: In how many cases do you think the Supreme Court has had a chance to overrule Roe v. Wade?

And he guessed something in the teens. And he was surprised to hear that there were 38. But that was one of many questions which Chief Justice Roberts successfully declined to answer.

QUESTION: Well, may I ask it this way, then: With your conversation with Judge Alito today, would you say he was far off or close to where Judge Roberts ended up on the super and super-duper precedent question asked in the hearing?

SPECTER: (inaudible) if you want to rephrase the question to Chief Justice Roberts (inaudible) gotten an answer and I'll give you an answer.

I think he went farther than Roberts went when he said that -- he used the term "sliding scale" and said that when a case has been reaffirmed many times, it has extra -- I think he said "weight" -- as a precedent, reaffirmed by different courts, nominees appointed by different presidents.

QUESTION: Senator, the New Hampshire -- I believe it's the Ayotte case -- is scheduled for argument November 30th. You don't see any opportunity at this point for him to participate in that, given your schedule?

SPECTER: November 30th of this year?

QUESTION: Yes.

SPECTER: No.

(LAUGHTER)

QUESTION: Did you have a chance to discuss the Philadelphia Naval Yard case with Judge Alito this morning? And in any case, how much weight do you give his dissent in that case in deciding on commendations (ph)?

SPECTER: The Philadelphia Navy Yard case?

QUESTION: (OFF-MIKE)

SPECTER: I've heard of that case. We didn't discuss that one. We didn't discuss that one.

QUESTION: How much weight, if any, have you given it, along with all the other cases...

SPECTER: This is the 1994 Supreme Court decision and the previous decision was with the 3rd Circuit?

QUESTION: Right.

SPECTER: I would not consider that a conclusive disqualifier because he ruled against my argument in that case.

I'd forgotten about it. That was yesterday.

QUESTION: If the Democrats do threaten a filibuster, will you vote to end it?

SPECTER: I'm not going to engage in double hypothetical speculation. Single hypothetical speculation, maybe.

QUESTION: You discussed Griswold. Did you also discuss Lawrence v. Texas, and the precedential value of Lawrence v. Texas?

SPECTER: I didn't take up that case specifically. We met, as I said, for about an hour and a quarter and didn't take up all the questions I'll have to ask him.

QUESTION: You discussed Griswold. Did you discuss Eisenstadt with him as well? And do you see any possibility of getting a confirmation hearing in December?

SPECTER: I discussed the issue of the contraceptive issue applying singles, as well as marriage in Griswold. And Eisenstadt was not specifically mentioned, but the subject matter was.

QUESTION: Democrats say this was a nomination out of weakness by Bush, that he was catering to conservatives. Do you feel at all that this was, given what happened with Miers, a weak nomination?

SPECTER: I do not think that the charge by the Democrats that this was a nomination out of weakness has any validity at all. That spin game is par for the course in this city.

SPECTER: I can tell you that Judge Alito was on the list where Judge Roberts was selected the first time. He was on the list where Harriet Miers was selected the second time. So he's been in the mix from the very start, and he wasn't an add-on to placate any ideological group, in my opinion.

QUESTION: Senator, what kind of a witness do you think he'll be, since you know him? And what does he have to do to win over people who are disappointed that he's not a moderate, not a woman and not a minority?

SPECTER: What does he have to do? He has to establish that he's qualified. I reread the Constitution on nominations and I didn't find any of those requirements present in the Constitution.

QUESTION: That doesn't bother you?

SPECTER: Well, this may shock you, but if I were president I would handle things a little differently. But I'm not the president. And the job that I have to do is to make a decision on whether he's qualified. And I'm not going to make a decision standing at this TV room on one foot. I'm going to study his cases, notwithstanding how much I know about him.

What kind of a witness he will be? I think he'll be an excellent witness. When we were talking about cases and decisions, he had recall, and recall with some specificity. I talked to him about the gun case that has come up here, and he recalled that. And talked to him about Casey, he recalled the specifics of that. And talked to him about quite a number of cases.

He's a real legal scholar, beyond any question. And I think he'll be a very good witness.

QUESTION: You've asked a lot questions in the hearings and the letters to Miers and Roberts about executive and congressional power, the balance of power between the two.

Do you think that the Senate has ceded too much of its institutional power to the White House? And if so, what areas do you think the Senate ought to take power back? I know you talked in the last letters to Miers a lot about the ability to wage war and to maintain war or military action (inaudible).

SPECTER: Well, the answer to your first question, has Congress ceded too much power to the president, the answer is yes.

SPECTER: And the second part, to what extent -- how much time do you have?

(LAUGHTER)

QUESTION: As long as you got.

SPECTER: The issue on Guantanamo Bay, for example, is really at least a joint congressional judgment as to questioning, if not a primary congressional judgment, because the Constitution specifically says that the Congress will establish the rules for people caught on land or sea.

And the Supreme Court came down with three opinions on June 24th of last year which are a maze of complexity -- a crazy quilt, as I called them in our hearings. And Congress has not legislated in that field, and we really need to do so.

On the questions which I posed for Ms. Miers, I raised quite a number of areas where we have gone to war against -- in Korea and in Vietnam without a declaration of war.

Just today, the front page of the New York Times has a story about the evidence being twisted on the Gulf of Tonkin resolution. We authorized the use of force in October of 2002, which was not activated until April of 2003 against a strong constitutional issue as to unconstitutional delegation of a core congressional responsibility to declare war except on a state of facts known at the time -- an issue I raised on the Senate floor.

If you take a look at my letter of last Wednesday, of a week ago today, to Ms. Miers, you'll see quite a number of areas. We have quite a few extra copies. I plan to use them in the hearing.

(LAUGHTER)

We have a lot of extra copies.

Thank you all very much.

END

Courtesy FDCH/e-Media


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Let the Great Debate Begin

By George F. Will

With the nomination of Samuel Alito, the nation's long-term needs and the president's immediate needs converge.

Our nation properly takes its political bearings, always, from the Constitution, properly construed on the basis of deep immersion in the intellectual ferment of the Founding Era that produced it. That is why our democracy inescapably functions under some degree of judicial supervision. The nation has long needed a serious debate about the proper nature of that supervision. And the president needed both a chance to demonstrate his seriousness and an occasion to challenge his Democratic critics to demonstrate theirs in a momentous battle on terrain of his choosing. The Alito nomination begins that debate.

When Churchill's wife said it was perhaps a blessing in disguise that British voters turned him out of office before the war in the Pacific ended, he growled that, if so, it was well disguised. President Bush must realize that the failure of the Harriet Miers nomination was such a blessing.

He quickly cauterized that self-inflicted wound and acted on this political axiom: If you don't like the news, make some of your own. Presidents are uniquely able to do this, and Bush, because of his statesmanlike termination of the Miers nomination, was poised to reorient the national conversation. And because of the glittering credentials that earned Alito unanimous Senate confirmation to the U.S. Court of Appeals for the 3rd Circuit, those Democrats who are determined to oppose him are unhappily required to make one of two intellectually disreputable arguments.

One is so politically as well as intellectually untenable that they will try not to make it explicitly. It is that judicial conservatism may once have been a legitimate persuasion but now is a disqualification for service on the Supreme Court.

To which there is a refuting question: Since when? Since 1986, when 98 senators -- including 47 Democrats -- voted to confirm Antonin Scalia, 98 to 0? Since last December, when Harry Reid, leader of Senate Democrats, said that Scalia would be a fine nominee for chief justice?

Reid doubtless would respond that Scalia would have been acceptable only because he was replacing someone comparably conservative -- William Rehnquist. Which brings us to the second disreputable argument Democrats will be reduced to making: Alito is more of a judicial conservative than was Sandra Day O'Connor and thus unacceptable because it is unacceptable to change the court's intellectual balance. This argument is triply flawed.

First, nowhere is that rule written. Second, the history of presidential practice -- Democrats should especially study FDR's sweeping alteration of the court's composition -- refutes the rule. Third, when the Senate voted in 1993 to confirm the very liberal Ruth Bader Ginsburg, former counsel to the American Civil Liberties Union, to the seat being vacated by the retirement of the conservative Byron White, 96 senators voted for her, including 25 Democrats still serving in the Senate. Including Reid. Including Pat Leahy, Ted Kennedy, Joe Biden, Dianne Feinstein, Herbert Kohl and Russ Feingold, all members of today's Judiciary Committee.

Reid urged the president to nominate Miers, whose withdrawal Reid says he laments. Now Reid deplores the Alito nomination because it was, Reid says, done without Democratic "consultation." But it was during such consultation that, Reid says, he warned the president not to nominate Alito. So Reid's logic is that nothing counts as consultation unless it results in conformity with Democratic dictates.

When Reid endorsed Scalia for chief justice, he said: "I disagree with many of the results that he arrives at, but his reason for arriving at those results are [sic] very hard to dispute." There you have, starkly and ingenuously confessed, the judicial philosophy -- if it can be dignified as such -- of Reid and like-minded Democrats: Regardless of constitutional reasoning that can be annoyingly hard to refute, we care only about results. How many thoughtful Democrats will wish to take their stand where Reid has planted that flag?

This is the debate the country has needed for several generations: Should the Constitution be treated as so plastic, so changeable that it enables justices to reach whatever social outcomes -- "results" -- they, like the result-oriented senators who confirm them, consider desirable? If so, in what sense does the Constitution still constitute the nation?

This is a debate that the president, who needs a victory, should relish. Will it, as Democrats mournfully say, "divide" the country? Yes. Debates about serious subjects do that. The real reason those Democrats are mournful is that they correctly suspect they are on the losing side of the divide.

georgewill@washpost.com


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A Rapid Response on All Sides

By Michael A. Fletcher

Within two hours of President Bush's nomination of U.S. Court of Appeals Judge Samuel A. Alito Jr. for the Supreme Court yesterday, the liberal advocacy group People for the American Way had e-mailed hundreds of thousands of its members, contacted journalists across the country and released a report on Alito's jurisprudence -- all in an effort to derail the nominee.

The conservative Third Branch Conference, meanwhile, spent the hours after the president's announcement happily planning ways to back Alito. In a conference call with leaders of about 75 right-leaning groups, the organization extolled Alito's conservative credentials and urged grass-roots support of his nomination.

"The president really defeated the ogre of stealth nominations," said Manuel Miranda, founder and chairman of the organization, whose opposition was instrumental in sinking White House counsel Harriet Miers's nomination to the high court. "This is a great accomplishment for the presidency."

After years of research, fundraising and occasional skirmishes over lesser positions on the federal bench, liberal and conservative advocacy groups have fired the first volleys in what is expected to be an all-out battle over the direction of the Supreme Court. Both sides are predicting the fight, which is beginning with activists hosting conference calls and sending e-mails and mass mailings to mobilize their supporters, will escalate into a louder public campaign that could possibly culminate in a Senate filibuster battle.

"The president has laid down the gauntlet and the battle is now wide open," said Nan Aron, president of the liberal Alliance for Justice, which successfully opposed conservative judge Robert H. Bork's 1987 Supreme Court nomination. "The stakes couldn't be higher given the dangers posed by Alito's record and the swing seat to which he's been nominated."

In anticipation of this fight, millions of dollars have been raised, which will be spent on television, radio and print advertising. Individual senators can expect to be targeted by advocates on both sides.

Just hours after Alito's nomination, Aron's organization sent e-mails to its network of supporters, which includes thousands of lawyers, professors and law students. The missives urged them to join the effort to defeat Alito.

That work was repeated by a broad spectrum of liberal advocacy groups.

After contacting board members, the National Family Planning and Reproductive Health Association decided to oppose Alito within 90 minutes of his nomination. The group's leaders then zapped e-mails laying out elements of Alito's record -- particularly his support of a Pennsylvania law requiring women to receive permission from their husbands before getting an abortion -- that trouble them most.

"It was the fastest we've ever come out against a nominee," said Judith M. DeSarno, president of the organization. "It just can't be much worse than this."

NARAL Pro-Choice America, an abortion rights group, also mobilized against Alito in the hours after his nomination. The group contacted its 27 affiliates across the country and sent e-mails to hundreds of thousands of its supporters telling them to gird for battle.

"We understand very clearly what's at stake," said Nancy Keenan, the organization's president, who called Alito an opponent of legal abortion. "The president made a conscious decision to cater to the base and left Middle America out in the cold."

With the Supreme Court closely divided on social issues including abortion, affirmative action and the role of religion in public life, advocacy groups on both sides have long anticipated waging a climatic battle over Bush's court nominees. But the president eluded that fate with his nomination of now-Chief Justice John G. Roberts Jr., who is widely viewed as a solid conservative but lacked a clearly defined judicial record on the nation's most contentious cultural issues.

Miers's ill-fated nomination produced a fight -- but not the one that was expected. Her lack of a judicial record or history as a constitutional thinker prompted some conservative groups to oppose her, while liberal groups stayed out of the fray.

By contrast, Alito's 15-year record as an appellate judge has left an extensive conservative record, which has cheered groups on the right as much as it has alarmed those on the left.

Progress for America yesterday put the finishing touches on a week-long series of television ads supporting Alito. The $425,00 ad buy, which will begin airing today, will focus on Alito's long experience as a lawyer and jurist.

"No one can argue that Judge Alito is anything but extremely well qualified," said Brian McCabe, the organization's president.

Concerned Women for America, which had opposed Miers, featured a smiling photograph of Alito on its Web site, noting that the nominee has "an outstanding judicial track record." The group sent e-mails and prepared letters to be sent to its half-million members in support of Alito. At the same time, the organization's leaders fanned out for media interviews extolling the nominee.

"The president got it right this time," said Jan LaRue, the organization's chief counsel. "We only wish he had done this on October 3rd. This judge has always been at the top of our list for the Supreme Court."


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Alito Nomination Sets Stage for Ideological Battle

By Peter Baker

President Bush nominated U.S. Court of Appeals Judge Samuel A. Alito Jr. to the Supreme Court yesterday, rallying his estranged Republican base back to his side and triggering a torrent of liberal attacks that could foreshadow a bruising ideological showdown over the future of the judiciary.

In effect relaunching the nomination four days after Harriet Miers withdrew under fire, Bush selected a long-standing New Jersey judge with an extensive record of conservative rulings on abortion, federalism, discrimination and religion in public spaces. If confirmed to replace retiring Justice Sandra Day O'Connor, the swing vote in recent years, Alito seems likely to shift the court to the right.

Conservative leaders who helped force Miers to pull out Thursday rejoiced at the selection, seeing in Alito the philosophical equivalent of Justice Antonin Scalia. Liberal groups moved instantly onto a war footing and accused Bush of bowing to the most extreme elements of his party. The intensity of the response instantly put Alito at the center of what seems to be the political confirmation battle that both sides have been gearing up to fight for more than a decade.

"Judge Alito has gained the respect of his colleagues and attorneys for his brilliance and decency," Bush said in introducing his latest choice. "He's won admirers across the political spectrum. I'm confident that the United States Senate will be impressed by Judge Alito's distinguished record, his measured judicial temperament and his tremendous personal integrity."

Critics wasted no time disputing that. Senate Minority Leader Harry M. Reid (D-Nev.), Sen. Charles E. Schumer (D-N.Y.) and the liberal group People for the American Way rushed out statements blasting the nomination even before Bush announced it at 8 a.m. By the day's end, much of the organized left had joined the chorus, including the AFL-CIO, NARAL Pro-Choice America, the Alliance for Justice, MoveOn.org and the Leadership Conference on Civil Rights.

"After insisting that Harriet Miers shouldn't even get a hearing because she couldn't prove she was extreme enough, the far right has now forced the president to choose a nominee that they think has views as extreme as their own," said Sen. Edward M. Kennedy (D-Mass.).

Reid, who had encouraged Bush to pick Miers, said the Senate would have to investigate whether Alito "is too radical for the American people" and complained of another white male nominee. "President Bush would leave the Supreme Court looking less like America and more like an old boys club," Reid said.

If confirmed as the nation's 110th justice, Alito would join a nine-member court that has one woman and one black justice. Alito would be the second Italian American, after Scalia, and its fifth Catholic, joining two Jews, a Protestant and an Episcopalian. Bush had considered appointing the first Hispanic justice but opted against the known candidates. And despite pleas from O'Connor and Laura Bush, he decided against putting forth a second woman after Miers failed.

In some ways, Alito, 55, appears to be everything Miers was not. She was a corporate lawyer who studied at Southern Methodist University and broke gender barriers in Texas; Alito earned degrees from Princeton and Yale universities and served in President Ronald Reagan's Justice Department and as U.S. attorney in New Jersey.

Miers was never a judge and generated a limited paper trail with ambiguous political moorings. Alito has served on the U.S. Court of Appeals for the 3rd Circuit with chambers in Newark since being nominated by President George H.W. Bush in 1990 and has addressed a range of society's most volatile subjects.

The same president who touted Miers a month ago as a nominee with real-world experience far removed from "the judicial monastery" yesterday emphasized Alito's lengthy history on the bench, noting that he "has more prior judicial experience than any Supreme Court nominee in more than 70 years." Bush even chose to introduce Alito in the main hall of the White House, rather than in the Oval Office, where he announced Miers's nomination.

Presidential aides acknowledged the course change. "We tend to learn our lessons," said one senior official, who spoke on the condition of anonymity so he could be more candid. White House press secretary Scott McClellan said that "the culture of today's confirmation process makes it very difficult for someone who comes from outside the court" to be appointed.

The Trenton, N.J.-born son of an Italian immigrant, Alito has drawn comparisons to Scalia, to the point that some have dubbed him "Scalito" -- as if he were the next generation of the Supreme Court's most powerful conservative intellect. Alito shares some of Scalia's legal views, but those who know the nominee describe him as less fiery in his rulings and less acerbic in comments from the bench.

Appearing with Bush and joined by his wife, Martha-Ann Bomgardner, and their two children, Alito described the "sense of awe" he felt about the Supreme Court, where he argued cases as a young lawyer in the solicitor general's office. He described the court's constitutional role as constrained.

"Federal judges," he said, "have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans and to do these things with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system."

During his time on the appellate court, supporters said, Alito has stood out as a consistent voice for a strict interpretation of the law. Perhaps his most famous opinion came in the case of Planned Parenthood v. Casey , when in dissent he voted to uphold part of a Pennsylvania law requiring a woman to notify her husband before obtaining an abortion. The Supreme Court rejected that as unconstitutional and used Casey to reaffirm Roe v. Wade .

Alito wrote a ruling upholding a city-sponsored holiday display in Jersey City that included a creche and menorah as well as secular symbols such as Frosty the Snowman. He struck down a Newark Police Department policy forbidding officers to wear beards after two Muslims complained that it violated their religious rights. He argued that Congress did not have the power to ban the intrastate sale of machine guns. In a variety of other cases, he showed skepticism of court intervention in discrimination claims.

The large body of Alito's work over 15 years stands in contrast even to that of newly confirmed Chief Justice John G. Roberts Jr., who had served two years on the appellate bench before Bush nominated him. As a result, liberal organizations such as People for the American Way and the Alliance for Justice, which spent weeks probing Roberts's record before opposing him, immediately announced what the first group called a "massive national effort" to defeat Alito.

"Alito's confirmation could shift the court in a direction that threatens to eviscerate the core protections for women's freedom guaranteed by Roe v. Wade or overturn the landmark decision altogether," said NARAL President Nancy Keenan.

On the other side of the spectrum, Progress for America, a group with close ties to the White House, launched a $425,000 television advertising campaign and a $50,000 Internet blitz in support of Alito, including an instant Web site, http://www.judgealito.com . Other conservative organizations plan their own efforts, in a stark change from the Miers nomination, when most refused to help or outright opposed her.

"The rift within the base was healed at 8 a.m. today," said Jay Sekulow, chief counsel at the American Center for Law and Justice and a key White House adviser. "Bygones are bygones. Now we're all unified again."

Since Alito has expressed opinions on "every hot-button issue" in American society, Sekulow added, "you've got to prepare for a slugfest."

Aside from his writings, another issue that could provoke scrutiny was a case in 2002 when Alito, along with two other judges, threw out a lawsuit against Vanguard Group while having invested hundreds of thousands of dollars in Vanguard mutual funds. Alito rejected an accusation of conflict of interest, but the case was reheard by another panel.

Alito was on Bush's short list from the beginning. Back in July, when the president first picked Roberts, he also interviewed Alito, who was one of two serious runners-up along with Judge J. Michael Luttig of the 4th Circuit, according to aides. But as the president contemplated a second opening on the court, his priorities shifted to finding a woman, particularly one with experience not as a judge, which led to Miers.

After her nomination imploded Thursday, Bush turned back to his original finalists from July and settled quickly on Alito. "It was clear if the president was going to go for someone with judicial experience that Alito was his pick," the senior official said. "That made for a fairly predictable process once Harriet withdrew her name."

Within hours of Miers's departure, White House Chief of Staff Andrew H. Card Jr. was on the telephone with Alito. Bush called Alito the next day at 12:40 p.m. -- just as a special counsel was releasing an indictment of senior White House official I. Lewis "Scooter" Libby. But Bush did not need another formal interview. Instead, he flew to Camp David for the weekend with Card and Miers, in her role as White House counsel, to make his decision. "There was a lot of momentum behind Judge Alito," the official said. "I don't think there was a lot of gnashing of teeth."

Alito arrived in Washington on Sunday. He met with Bush in the Oval Office yesterday at 7 a.m., when the president offered him the post. Alito's family then joined them.

Bush, the official said, warned the children about the confirmation.

"Don't pay attention to what you hear about your dad," the aide quoted Bush as saying. "The process can be tough."


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With a Pick From the Right, Bush Looks to Rally GOP in Tough Times

By Dan Balz

Weakened by scandal, Iraq and the failed nomination of Harriet Miers, President Bush offered up a Supreme Court nominee yesterday guaranteed to rally his fractured Republican base. But the choice of Judge Samuel A. Alito Jr. appears certain to produce an angry ideological battle with the Democrats that will dominate the country's politics heading into next year's midterm elections.

The Alito nomination instantly brought a fresh eruption of the partisan warfare that has defined the Bush era, and it set the stage for the battle many predicted four months ago when Justice Sandra Day O'Connor, the court's swing vote on many key issues, announced her intention to retire.

With the ideological balance of the court now in question, partisans on the left and right moved swiftly to the barricades. Senate Democrats declined to rule out a filibuster to block Alito, and Republicans renewed talk of invoking the "nuclear option" if necessary to prevent one.

Whether the upcoming battle, which is likely to focus heavily on the divisive issue of abortion, ultimately helps a president whose approval ratings are scraping 40 percent, and whose support among moderates and independents has plummeted even lower, is an open question -- and one hotly debated among strategists yesterday.

Given the state of his presidency and party, Bush may have had no other choice than to name a Supreme Court candidate who would help to heal the divisions within the GOP coalition, even at the risk of further alienating voters in the center. Democrats were convinced the choice would move Bush's image irrevocably to the right, but some Republicans said this is exactly the kind of fight that could help turn around Bush's troubled presidency.

"The dispute over Miers's nomination shows that they're not adept at dealing with discontent on their own side," said Ron Klain, former chief of staff to Vice President Al Gore. "This is a president who has never governed from the center and who is clearly uncomfortable with the crosswinds that come with that. So they went back to familiar turf. I'm not sure they can afford to do that, but they lack the dexterity to do something different."

But Republicans said the only sensible recovery strategy for the embattled president begins with putting his own coalition back together. After months of bad news, the Republicans need a symbol around which to unify and for conservatives, Alito and changing the court may be precisely the answer.

Republican Vin Weber, a former representative from Minnesota, said a major fight with Democrats was inevitable after the Miers withdrawal and that Bush was wise to find a nominee who would be received enthusiastically by party conservatives. In the long run, he predicted, the fight would help Republicans more than Democrats.

"The Democrats don't need rallying right now and the Republicans do," he said.

Sen. Lindsey O. Graham (R-S.C.) argued that the confirmation battle over Alito will give Republicans an opportunity to put some of their current troubles into the background and to engage the Democrats on a debate over judicial philosophy and restraint that will win support not just among conservative activists but the moderate middle of the electorate.

"Liberal judicial activism is not in fashion in America. Having a fight over conservatism in terms of judging will put us closer to the middle than our friends on the Democratic left," Graham said. "We're being defined by our mistakes and our problems. This fight will give us a chance to talk about what they [Democrats] want if they're in charge and in that way it will be good for the Republican Party."

Charlie Black, a veteran GOP strategist and outside adviser to the White House, said Democrats may overestimate how much middle-of-the-road voters will be drawn to an ideologically polarizing debate over Alito's views. "I think average Americans -- moderates, independents -- look at the qualifications and credentials first, then will want to get to know the person better through the hearings," Black said.

Noting that new Chief Justice John G. Roberts Jr. proved not to be a polarizing figure because of his demeanor and intellect, Black said, "People who know Alito think the same thing might happen."

With years on the appeals court filling out a top-tier legal background, Alito's credentials will be hard for Democrats to challenge. And his demeanor is said by most who know him to be smoother and less confrontational than that of Justice Antonin Scalia, a hero of the right.

Even so, Alito's paper trail is far longer and more provocative on the most controversial social issues than was Roberts's. Liberal constituency groups immediately announced their opposition to Alito yesterday, and Senate Democrats, including some who voted for Roberts, issued tough, skeptical statements in response to his nomination.

Sen. Patrick J. Leahy (Vt.), the ranking Democrat on the Senate Judiciary Committee and a supporter of the Roberts nomination, called the president's choice "needlessly provocative," saying the president rewarded a narrow wing of the Republican Party rather than the country as a whole.

If GOP conservatives were energized by Bush's choice, Republican moderates in the Senate found themselves in an uncomfortable position. Sen. Lincoln D. Chaffee (R.I.) issued a statement outlining a string of concerns about Alito's record. Other moderates remained silent. Their votes will be the target of fierce competition between the White House and the Democrats, as will the votes of the seven Democrats in the bipartisan Gang of 14, whose compromise agreement in the spring averted a showdown over the future of Senate filibusters on judicial nominees.

"If you lock your moderates down, the likelihood of filibuster becomes less likely," one GOP lawmaker said yesterday. If Democrats "sense weakness on our side, then this guy is in trouble. The first goal is to lock down your moderates and then work on the seven Democrats in the Gang of 14 and create a comfort level with both."

Weber said a successful fight to confirm Alito would leave Bush and the Republican Party in "dramatically better shape" by early next year. But Democrats said they can foresee no significant risk in waging an all-out battle, which they believe will leave the Republicans further to the right than before, even if Alito wins confirmation. That assures the kind of confrontation the country has not seen over a high-court nomination since Bush's father picked Clarence Thomas in 1991.


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Comparisons to Scalia, But Also to Roberts

By Michael Grunwald, Jo Becker and Dale Russakoff

On April 5, 1990, four days after Samuel A. Alito Jr. celebrated his 40th birthday, he enjoyed a cakewalk of a hearing on his nomination to the U.S. Court of Appeals. The Senate Judiciary Committee asked Alito only four questions -- just one more than its chairman, Sen. Edward M. Kennedy (D-Mass.), asked Alito's 4-year-old son, Philip.

Sen. Frank Lautenberg (D-N.J.) introduced Alito as "an accomplished and distinguished lawyer," a prosecutor who had spent his entire career in government service. Kennedy was even more lavish in praising President George H.W. Bush's nominee, and said he was "sure" Alito would be a successful judge. "In the absence of any large group complaining about your nomination," said Sen. Arlen Specter (R-Pa.), "it appears that you will have clear sailing."

Specter was right; Alito was unanimously confirmed. But 15 years later, another President Bush has nominated Alito to the Supreme Court, and the sailing no longer seems clear. The uncontroversial, apolitical public servant of 1990 is now being embraced and attacked as a staunch conservative. A shy, soft-spoken man who rarely displays much emotion about anything other than his family or his beloved Philadelphia Phillies is being hailed and reviled as the second coming of Justice Antonin Scalia, the caustic legal provocateur who also happens to be a Catholic, Italian American jurist from Trenton, N.J.

The real Sam Alito, according to the lawyers and other friends who know him well, is more like the second coming of Chief Justice John G. Roberts Jr., but with a longer paper trail. They describe Alito as a studious, diligent, scholarly judge with a first-rate mind and a deadpan sense of humor, a neutral arbiter who does not let personal beliefs affect his legal judgments.

They say he inherited a commitment to unbiased professionalism from his father, who served as the New Jersey legislature's nonpartisan research director for a quarter century. They don't know anyone who isn't a journalist who actually calls him "Scalito."

On the left-of-center 3rd Circuit, Alito has written several dissents applauded by conservative commentators, from his argument that a federal ban on machine guns seemed unconstitutional to his opinion that a state law requiring most married women to notify their husbands before getting an abortion was not.

But even though Alito has been a member of the Federalist Society, and many of the "large groups" Specter mentioned in 1990 are mobilizing to fight his nomination, he was widely respected among liberals as well as conservatives before his judgeship. And some liberals who have known him for decades still say they admire the man, if not his opinions.

"I have no idea how he's voted on anything in the entire 30 years of our friendship . . . he's quite apolitical," said New York lawyer Daniel Rabinowitz, a liberal Democrat who attended Yale Law School with Alito, clerked with him on the 3rd Circuit and served with him as a federal prosecutor. "He's been a nonpartisan public servant in the tradition of his dad."

Like Roberts -- and unlike White House counsel Harriet Miers, whose nomination was withdrawn last week -- Alito followed a fairly traditional path to his nomination, attending Ivy League schools, clerking for a federal judge, working for the Department of Justice, and serving on the bench. Like Roberts, Alito has been touted as material for the high court for decades; even his Princeton University yearbook predicted that he would "warm a seat on the Supreme Court." According to classmate Victor R. McDonald III, the newspaper at Alito's high school newspaper forecast an even loftier future:

"Sam Alito defeats God in landslide election for ruler of the universe."

Samuel Anthony Alito Jr. was born on April 1, 1950, in the Chambersburg section of Trenton, a blue-collar Italian neighborhood in a hardscrabble industrial city. But he grew up in the suburb of Hamilton, and his parents were committed educators.

His mother, Rose, was an elementary school principal. His father, Samuel, was an Italian immigrant who became a high school history teacher and then the first director of New Jersey's Office of Legislative Services, a kind of Garden State equivalent of the Congressional Research Service. From the late 1960s until his retirement in 1983, he provided a wealth of public policy information to Republicans and Democrats, and he was respected on both sides of the aisle.

"He was known throughout New Jersey as an icon of professionalism," recalled his successor, Albert Porroni. "He had a great shock of white, thick hair, smoked a pipe -- just what you would expect of a research director. He was revered by legislators of both parties for his commitment to the highest-quality research, free of bias and partisanship."

"I don't see how his values could not have influenced young Sam," Porroni added.

Sam and his sister Rosemary -- now a New Jersey lawyer and the author of an influential guide to the state's employment law -- attended public school at Hamilton East-Steinert High, and were partners on the debate team. Sam was the class brain; his sophomore English teacher, Elaine Tarr, realized that the regular curriculum would not challenge him, so she gave him a list of great authors to read on his own: Faulkner, Orwell, Sinclair, Kafka.

"If I made a statement, I had better be able to defend it, because he would come back at me," Tarr said. "But Sam was always very respectful even when he disagreed."

McDonald, Alito's classmate, recalled that teachers often excluded his scores when they graded on a curve, because he was so far ahead of everyone else. "We all knew A's were not the equivalent of Alito A's," he said. But if Alito was a hero among the nerds, the cool kids liked him, too; he was easily elected student council president. He also played in the school band, ran track and was the editor of the Hy-Liter, the student paper.

Alito then attended Princeton, where he spent most of his time in the library. He was admitted to the Woodrow Wilson School's politics program, where he spoke at conferences on arms control and privacy, and wrote a thesis on Italy's constitutional court. His thesis adviser, Walter Murphy, recalled him as "probably the most judicious student I ever had," focused like a laser on a legal career.

Alito also joined the debate team, and won a $100 prize for an argument defending Vice President Spiro Agnew. One of his debate teammates, Mark Dwyer, recalled Alito as a political moderate, which was not as unusual at Princeton as it was at other Ivy League schools during the Vietnam era; one classmate recalled it as "a hotbed of social rest." Still, there were some radical antiwar activists, and Murphy recalled that "Sam, when these things were discussed in seminar, would sort of look at them like, 'Man, you have got to be kidding.' "

In fact, Alito joined the Reserve Officers Training Corps. But Dwyer recalls that decision as a pragmatic response to a low draft number, not a political statement. Dwyer says Alito simply wanted to enter the military as an officer, not as an infantry grunt; he later served in the Army Reserve and was honorably discharged as a captain.

Alito then went on to Yale Law School, where he was known as a quiet, sober, extremely bright law wonk. "If you missed class and needed someone to borrow notes from, Sam was the person," said classmate George Carpinello.

Alito was a conservative, which was not particularly fashionable at Yale, but he was not too vocal about it; many friends were quite liberal. Classmate Peter Goldberger, now an appellate lawyer in Pennsylvania, says he is "left-of-liberal," but he recalls that when Alito did speak, "it was always something that made you sit up and think, 'Wow, what a good idea.' "

"Sam found a genuine intellectual home in the law," said classmate Rabinowitz. "He likes its detail, its care, its exactitude and he likes its fairness."

After Yale, Alito clerked on the 3rd Circuit for Judge Leonard I. Garth, a Nixon appointee with a reputation as a scrupulous appellate craftsman, who is now one of Alito's colleagues. Alito then joined the appellate division of the U.S. attorney's office in Newark, as an assistant under Maryann Trump Barry, who is now another colleague on the 3rd Circuit, but is perhaps best known as Donald Trump's sister. The office's prosecutors called the appellate division at all hours for advice on warrants and subpoenas -- and Alito was their go-to guy.

"Even as a young lawyer, the product he turned out was superb," Barry said.

In the U.S. attorney's office, Alito also found his future wife, Martha-Ann Bomgardner, a law librarian who seemed his polar opposite. Where he was studious and reserved, she was a live wire; they married soon after he left the office to move to Washington in 1981.

At the dawn of the Reagan Revolution, the Justice Department was evolving into a sort of Republican think tank, filled with bright young conservatives who wanted to reshape the legal landscape on such issues as school busing, affirmative action and abortion. Roberts was part of that "Band of Brothers" -- although some fellow revolutionaries say he was always more committed to the law than any policies.

Alito was not even part of that crowd, they say. He entered government as a career civil servant, not a political appointee -- first in the solicitor general's office, where he argued for the United States in 12 cases before the Supreme Court, and then at the Office for Legal Counsel, giving advice to the administration.

Alito's cases did not focus on hot-button social issues; they ranged from the rules governing the seizure of racketeering assets to the right of the Air Force to withhold the release of witness statements in accident investigations. He once argued that the Clean Water Act should not bar the Environmental Protection Agency from giving variances to polluters; his colleagues all say he was just doing his job, not making policy.

"Sam wasn't someone who talked politics," said Lawrence G. Wallace, who worked with Alito at the solicitor general's office "He was a highly professional person who didn't make a lot of waves; his whole personality was sort of buttoned down."

Alito got noticed as someone who was often the smartest guy in the room but didn't seem to have a need to flaunt it. He took an analytical approach to every case, focusing on the wording of the statutes in question. He shied away from novel legal arguments. He was so deliberate that colleagues developed a catchphrase to describe his exhaustive pondering; they called it "noodling," as in, "Oh, Sam's in there noodling again."

"He's John Roberts, but with a background in criminal law," said Michael Carvin, a colleague at the Justice Department. Former solicitor general Charles Fried, now a Harvard law professor, said the "Scalito" moniker is totally unfair, and probably based on ethnic stereotypes.

Douglas W. Kmiec, a professor of constitutional law at Pepperdine who worked with Alito at Justice, points out that unlike Scalia, Alito is often interested in trying to determine the legislative intent of a statute by studying its history.

"Nino is a radical conservative, willing to turn the world upside down to achieve a conservative agenda," Fried said. "Sam is a conservative conservative. He would never do something that when it came up you'd say, 'Whoa, where did you get that?' "

In 1985, Office of Legal Counsel head Charles Cooper asked Alito to be his deputy; he said it was clear that Alito, although less vocal than the political appointees, shared their philosophy of judicial restraint.

For example, Alito helped write a opinion that employers could legally fire AIDS victims because of a "fear of contagion, whether reasonable or not," because discrimination based on insufficient medical knowledge was not prohibited by federal laws protecting the disabled. Alito later explained that "we certainly did not want to encourage irrational discrimination, but we had to interpret the law as it stands."

In 1987, President Ronald Reagan appointed Alito to be the U.S. attorney for New Jersey, an unusual political plum for a career civil servant. Alito got off to a rocky start when a jury acquitted 20 mob defendants his office had prosecuted -- a case he inherited from his predecessor -- but when National Law Journal described the defeat as an embarrassment for his office, Alito fired back an uncharacteristically caustic response that was twice as long as the original article, calling it "an utterly distorted picture of my office."

In general, though, Alito was known as a low-volume, by-the-book boss, driven by the law rather than any ideology. "He was his own person," said Department of Homeland Security Secretary Michael Chertoff, who was Alito's top deputy and then a colleague on the bench. "His legal behavior was never a function of any personal politics."

Lawrence Lustberg, a liberal civil rights lawyer who was once a public defender in New Jersey, recalls that Alito was never a crusader; he was willing to listen to arguments about why cases should be dismissed or plea-bargained. In 1990, when Alito was nominated for the bench, then-Sen. Bill Bradley (D-N.J.) noted that "without a lot of fanfare, without calling daily news conferences, he has inspired his office with a low-key sense of professionalism."

At his last nomination hearing, Alito faced just a handful of questions. Kennedy asked if after a career representing the government, he could treat claims against the government fairly. "I am confident that I can do that," Alito replied.

Kennedy then asked what quality was most important for an appellate judge. Open-mindedness, Alito replied. "What about that fellow on your left?" Kennedy asked. "Does he have any comment?" Philip Alito did not.

"We are glad to have you here, and we will look forward to supporting you and voting for you," Kennedy said. "We are glad your family is here, too."

Staff writers Laura Blumenfeld, Marc Fisher, Barton Gellman, Amy Goldstein and R. Jeffrey Smith and research editor Lucy Shackelford contributed to this report.




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Alito Leans Right Where O'Connor Swung Left

By Charles Lane

In 1991, Judge Samuel A. Alito Jr. voted to uphold a Pennsylvania statute that would have required at least some married women to notify their husbands before getting an abortion; a year later, Justice Sandra Day O'Connor cast a decisive fifth vote at the Supreme Court to strike it down.

In 2000, Alito ruled that a federal law requiring time off for family and medical emergencies could not be used to sue state employers for damages; three years later, O'Connor was part of a Supreme Court majority that said it could.

And last year, Alito upheld the death sentence of a convicted Pennsylvania murderer, ruling that his defense lawyers had performed up to the constitutionally required minimum standard. When the case reached the Supreme Court, O'Connor cast a fifth vote to reverse Alito.

The record is clear: On some of the most contentious issues that came before the high court, Alito has been to the right of the centrist swing voter he would replace. As a result, legal analysts across the spectrum saw the Alito appointment yesterday as a bid by President Bush to tilt the court, currently evenly divided between left and right, in a conservative direction.

O'Connor "has been a moderating voice on critical civil liberties issues ranging from race to religion to reproductive freedom," said Steven R. Shapiro, national legal director of the American Civil Liberties Union. "Judge Alito's nomination . . . therefore calls into question the court's delicate balance that Justice O'Connor has helped to shape and preserve."

"With this nomination, Bush is saying 'Bring it on!' " said John C. Yoo, a former Bush administration Justice Department official. "There is no effort to evade a clash with Senate Democrats. That's why conservatives are so happy."

The differences in judicial philosophy between Alito and O'Connor are not absolute. He has not flatly written that Roe v. Wade , the Supreme Court's 1973 abortion rights ruling, should be overturned -- as have some other conservatives who were thought to be on Bush's list for the court.

Alito struck down a New Jersey law that would have banned the procedure known by opponents as "partial-birth" abortion -- just as O'Connor did. His ruling, following the one O'Connor voted for, said the statute was unconstitutional because it did not include an exception for cases in which the woman's health was at risk.

And despite the disagreement on the Family and Medical Leave Act's applicability to the states, the two appear to share a narrow view of the federal government's power to make national laws under its authority to regulate interstate commerce.

The scholarly Alito earned his conservative reputation not through outspoken opposition to the Supreme Court's jurisprudence -- which was the approach taken by Judge Robert H. Bork in his failed bid for the Supreme Court in 1987. Instead, as a member of the U.S. Court of Appeals for the 3rd Circuit, which includes Pennsylvania, New Jersey, Delaware and the Virgin Islands, he sought to uphold precedent as he saw it through his own conservative filter.

An irony of Alito's appointment as a replacement for O'Connor is that, in several of his most controversial rulings, he was exploring how much conservative running room there might be in sometimes-vague legal standards O'Connor herself had helped articulate on the Supreme Court.

One such standard was O'Connor's notion, set forth in a series of abortion cases during the 1980s, that Roe v. Wade protected the abortion right against any "undue burden" a state might try to place on it.

In the 1991 case, Alito joined two other judges in upholding various abortion regulations the Pennsylvania legislature had adopted. But he was the only member of the panel who thought the law's requirement that married women must notify their husbands before having an abortion was not an "undue burden" as O'Connor had defined the concept.

In an opinion that never called for the overruling of Roe or even spoke negatively of it, Alito said that the spousal-notification law would be all right -- in part because it made an exception for cases of spousal abuse.

However, Alito had guessed wrong about O'Connor's meaning. When the case came to the Supreme Court in 1992, she joined a five-justice majority that reaffirmed Roe and ruled that the spousal notification law constituted an undue burden.

On the Family and Medical Leave Act (FMLA), Alito's 2000 opinion concluded that a Pennsylvania state employee could not sue a state agency for damages for allegedly violating his right to paid sick leave.

Citing Supreme Court opinions written or supported by O'Connor, he said that Congress had lacked the power to abrogate the state's sovereign immunity to suit.

But, once again, this attempted application of precedent did not pan out -- because Alito had taken O'Connor's past rulings in a direction O'Connor herself did not want to go. Three years later, O'Connor reached a different result in a different case that presented the same issue.

She joined a 6 to 3 majority of the court in deciding that the FMLA was an appropriate federal response to gender discrimination, as the states had a history of basing their leave policies on the stereotype that women should stay home to take care of sick family members or newborn children.

In the death penalty case, a death row inmate in Pennsylvania argued that his lawyers had failed to investigate possible evidence that might have persuaded the jury not to sentence him to die. But Alito, citing a 1984 Supreme Court opinion by O'Connor, ruled that the lawyers had done a reasonable job, which, he said is all the Constitution requires.

O'Connor cast a fifth vote at the Supreme Court to overrule Alito, joining the four most liberal justices in concluding that the man's trial counsel had failed to investigate his case aggressively enough.

In addition to the late-term abortion case, Alito and O'Connor may agree about the limits to the federal government's power to legislate under the Constitution's commerce clause.

In 1995, O'Connor was part of a five-justice majority that struck down a federal ban on gun possession within 1,000 feet of a school. The court concluded that such a law intruded on local authority without any proof of an effect on interstate commerce.

The next year, Alito, citing that Supreme Court case, dissented from a 3rd Circuit decision that upheld a federal ban on possession of an automatic weapon, arguing that the sale of two guns by one person within Pennsylvania had no wider interstate impact. The Supreme Court declined to consider the gun seller's appeal.

In 1999, Alito upheld a Jersey City holiday display on public property that included a menorah and a creche, as well as Frosty the Snowman, Kwanzaa symbols and a sign explaining the city's intent to celebrate cultural diversity. Alito cited 1984 and 1989 Supreme Court decisions, joined by O'Connor, that had established a rule that such a mixed exhibition, which did not "endorse" a particular religion, would be constitutional.

The Supreme Court declined to review Alito's ruling.


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As Democrats Lead Opposition, GOP Moderates May Control Vote

By Charles Babington

Senate Democrats will lead the opposition to Samuel A. Alito Jr.'s Supreme Court nomination, but a handful of Republican moderates could ultimately decide its outcome, several analysts and lawmakers said yesterday.

The roughly half-dozen GOP senators who support abortion rights are scrutinizing Alito's dissent in a major 1991 abortion case. If they determine that his judicial record or his answers to questions signal a willingness to overturn the 1973 Roe v. Wade ruling that legalized abortion, they will fall under heavy pressure to oppose him, said congressional scholars and analysts.

With Republicans holding 55 of the Senate's 100 seats -- and with Democrats raising the possibility of a filibuster, in which 41 senators could prevent a confirmation vote -- Alito can withstand few Republican defections if Democrats solidly oppose him. That is by no means certain, experts note, but it is possible.

"I think the moderate, or pro-choice, Republicans will likely determine the fate of this nomination," said University of North Carolina law professor Michael Gerhardt, a constitutional expert.

Julian E. Zelizer, a Boston University history professor who has written extensively on Congress, agreed. "This nomination is going to put pro-choice Republican senators in an extremely uncomfortable position," he said. "The reality is that most Republicans who are not strong pro-life advocates were much happier when the abortion issue was not on the front pages."

But Alito's nomination seems destined to put it there. In 1991, he was the lone dissenter in Planned Parenthood v. Casey , in which the U.S. Court of Appeals for the 3rd Circuit struck down a Pennsylvania law that required a married woman to inform her husband before having an abortion.

Alito's dissent was narrowly and justifiably crafted, his supporters say. But when the Supreme Court upheld Casey in 1992, on a 5 to 4 vote, it was viewed as a significant reaffirmation of a woman's right to obtain an abortion, and Alito's opinion is certain to trigger scores of questions at his Judiciary Committee hearing.

His first inquisitor will be Chairman Arlen Specter (R-Pa.), a moderate who supports abortion rights and is viewed with deep suspicion by the far right. The nomination "certainly puts Specter in a very awkward position," said Ross K. Baker, a congressional scholar at Rutgers University. "He has been so outspoken in being pro-choice, if he gets a hint that Alito would overturn Roe v. Wade , he would certainly be against his confirmation."

Yesterday, Specter met with Alito for more than an hour. He later told reporters the nominee signaled he would be reluctant to overturn any Supreme Court ruling that had been reaffirmed many times over many years, as Roe has been. "I think he went farther than [Chief Justice John G.] Roberts went" in agreeing that long-standing rulings deserve great respect, Specter said. "He used the term 'sliding scale,' and said that when a case has been reaffirmed many times, it has extra -- I think he said 'weight' -- as a precedent."

The Senate's other best-known Republicans who support abortion rights -- Susan Collins and Olympia J. Snowe, both of Maine, and Lincoln D. Chafee of Rhode Island -- issued cautious statements yesterday. Chafee said the Alito nomination "raises many concerns," and that the dissent in Casey "showed a narrow view of a woman's right to choose." A few other Republican senators, including Kay Bailey Hutchison (Tex.), generally eschew the "pro-choice" label but say the right to legal abortions under some circumstances should remain.

The notion of even a few GOP defections could prove worrisome to the White House. All 55 Republicans, plus 22 of the 44 Democrats, voted to confirm Roberts as chief justice Sept. 29. Alito is virtually certain to draw more Democratic opposition than Roberts did, making every Republican vote more important.

Several Democrats yesterday cited Alito's dissent in Casey and his opposition to the Family and Medical Leave Act in leveling criticisms that were notably sharper than those made in the opening hours of Roberts's nomination.

"This is a needlessly provocative nomination," said Sen. Patrick J. Leahy (Vt.), the ranking Democrat on the Judiciary Committee. Sen Christopher J. Dodd (D-Conn.) said, "I'm disappointed that it appears President Bush chose to nominate a top choice of the extreme right. . . . As the author of the Family and Medical Leave Act, I'm troubled that Judge Alito wrote the lead opinion in a case that would have weakened this law." Leahy and Dodd voted to confirm Roberts.

Such criticisms, coupled with nearly universal condemnation of Alito's selection by liberal groups important to the Democratic Party's base, prompted talk in the Capitol that Democrats may try to filibuster the nomination. Senate Minority Leader Harry M. Reid (D-Nev.) declined to rule out a filibuster, and several key Republicans signaled that such an effort would fail.

Sens. Lindsey O. Graham (R-S.C.) and Mike DeWine (R-Ohio), members of the bipartisan Gang of 14 that drafted a pact on judicial filibusters in May, said they almost certainly would oppose an effort to use endless debate to keep Alito's confirmation from reaching a Senate vote.


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A Phillies Fan With Blue-Chip Legal Stats
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By Janet Hook, Richard B. Schmitt and Faye Fiore
Times Staff Writers

November 1 2005

WASHINGTON; When Samuel A. Alito Jr. graduated from Princeton University in 1972, he was clearly a young man on the move: His yearbook said he would "eventually warm a seat on the Supreme Court."

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Conservatives Cheer Court Nominee
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Bush's choice of appellate Judge Samuel Alito sets up a battle with Democrats who fear a rightward tilt on the Supreme Court.

By Warren Vieth
Times Staff Writer

November 1 2005

WASHINGTON; Energizing his conservative supporters, President Bush on Monday named Samuel A. Alito Jr., a federal appeals court judge with a 15-year record on the bench, to replace retiring Supreme Court Justice Sandra Day O'Connor.

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GOP Senator Discourages Alito Filibuster
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By JESSE J. HOLLAND
Associated Press Writer

November 1 2005, 10:16 AM PST

WASHINGTON -- Supreme Court nominee Samuel Alito is "clearly within the mainstream" and shouldn't be filibustered, declared a Republican who helped fashion a plan limiting parliamentary roadblocks for judicial nominees.

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http://www.latimes.com/news/nationworld/wi...0,2148082.story

GOP Senator Discourages Alito Filibuster

Updated 1:16 PM ET November 1, 2005

http://dailynews.att.net/cgi-bin/news?e=pr...8djr2502&src=ap

By JESSE J. HOLLAND

WASHINGTON (AP) - Supreme Court nominee Samuel Alito is "clearly within the mainstream" and shouldn't be filibustered, declared a Republican who helped fashion a plan limiting parliamentary roadblocks for judicial nominees.

Sen. Mike DeWine, who met with President Bush's latest high court choice Tuesday, warned Democrats he would side with GOP leaders to eliminate the judicial filibuster if the minority party uses it against the New Jersey judge.

"It's hard for me to envision that anyone would think about filibustering this nominee," said DeWine, an Ohio Republican who sided with 13 other Republicans and Democrats earlier this year to end a Senate stalemate over judicial filibusters.

But some Democrats were contemplating just such a move as the 55-year-old Alito began courting senators on the second day of his Supreme Court candidacy. Democratic Sen. Tim Johnson of South Dakota refused to rule out supporting a filibuster.

"I would leave all those options on the table," he said.

Johnson said he hasn't made up his mind on Alito after discussing the right to privacy and other constitutional issues with him Tuesday. "Not surprisingly, it's hard to draw hard and fast conclusions on how he will vote," Johnson said. "There is no question he is a conservative."

Democratic leaders are cautioning their colleagues against rushing to judgment on President Bush's pick to replace his previous unsuccessful choice, White House counsel Harriet Miers, as the successor for retiring Justice Sandra Day O'Connor.

"Ordinarily it takes six to eight weeks to evaluate a Supreme Court nominee. We shouldn't rush to judgment," Sen. Dick Durbin, D-Ill., the No. 2 Senate Democrat, said on CBS' "The Early Show."

DeWine, who met with Alito for more than an hour, is one of the 14 centrist senators Democrats need to sustain a filibuster. Without the group's seven Republicans, Democrats would not be able to prevent Senate Majority Leader Bill Frist, R-Tenn., from abolishing judicial filibusters and confirming judges with a simple majority vote. The Republicans hold 55 of the 100 seats in the Senate.

DeWine made clear Tuesday that a Democratic filibuster would not have his support, saying he didn't see how "anyone would think that this would constitute what our group of 14 termed 'extraordinary circumstances' that would justify a filibuster."

"This is a nomination of a judge who is clearly within the mainstream of conservative thought," he added.

The so-called "Gang of 14" _ the senators who reached the deal on limiting such filibusters _ will hold its first meeting on Alito Thursday.

The White House on Tuesday named former Indiana Republican Sen. Dan Coats and former Republican Party chairman Ed Gillespie to help guide Alito through his confirmation process. The two served in the same capacity for Miers, who withdrew her nomination last week after some conservatives refused to fully support her candidacy and questioned whether she was qualified.

Conservatives are much more comfortable with Alito than they were with Miers because of his conservative track record as a federal judge, prosecutor and a Reagan administration lawyer.

Miers had never been a judge.

The nomination got Bush on the good side again of conservative and anti-abortion groups, who declared Alito a winner after opposing Miers.

James Dobson, founder of Focus on the Family Action, said he was "extremely pleased," and the anti-abortion Operation: Rescue declared that the country was on "the fast-track to derailing Roe v. Wade as the law of the land."

Bush, who has seen his standing eroded by Iraq, rising fuel prices, hurricane mistakes and the indictment of a top aide to Vice President Dick Cheney, emphasized Alito's work on "thousands of appeals" and "hundreds of opinions."

Alito pledged to uphold the duty of a judge to "interpret the Constitution and the laws faithfully and fairly."

Democrats, however, are deeply suspicious of Alito, with Sen. Harry Reid of Nevada, the party's leader, wondering aloud "why those who want to pack the court with judicial activists are so much more enthusiastic about him" than Miers.

Alito upheld a requirement for spousal notification in an abortion case more than a decade ago, although Senate Judiciary Chairman Arlen Specter _ an abortion rights Republican _ insisted that doesn't mean Alito would rule to overturn Roe v. Wade, the 1973 ruling that established abortion rights.

Earlier this year, with O'Connor casting the deciding vote, the high court threw out a death sentence that Alito had upheld in the case of a man who argued that his lawyer had been ineffective.

Bush's first nominee this year, John Roberts, is now chief justice.

___

On the Net:

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Alito Could Be Vote on Abortion Cases

Updated 2:55 AM ET November 1, 2005
By DARLENE SUPERVILLE

http://dailynews.att.net/cgi-bin/news?e=pr...8djhuu00&src=ap

WASHINGTON (AP) - Samuel Alito, the conservative federal appeals judge nominated to the Supreme Court, could make an immediate difference on abortion and death penalty cases once on the court.

If confirmed, he would replace Justice Sandra Day O'Connor, often a swing vote on these issues.

Alito's track record on abortion, developed during a 15-year career on the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit, suggests a shift toward more restrictions on the procedure.

But his record on abortion is mixed and there is no guarantee he would vote to overturn Roe v. Wade, the court's landmark 1973 decision establishing a woman's constitutional right to an abortion.

In 1991, Alito voted to uphold a Pennsylvania law requiring women seeking abortions to notify their husbands. When the case reached the Supreme Court, the justices used it to reaffirm Roe. O'Connor was an architect of that 5-4 decision, which struck down the spousal notification requirement.

A Catholic, Alito opposes abortion, his 90-year-old mother told reporters Monday. But as an appeals court judge, Alito was required to abide by previous Supreme Court rulings, and he did.

In 2000, for example, Alito was among judges who ruled that a New Jersey law banning certain late-term abortions was unconstitutional, in keeping with a similar Supreme Court ruling. He did not join the main court opinion, but he wrote a careful decision that said his vote was compelled by precedent.

In 1995, he voted to invalidate Pennsylvania restrictions on publicly funded abortions for women who are victims of rape or incest. The state wanted the women to have to report the crime to police first, but Alito joined another judge in finding that state rules were trumped by federal policy.

Depending on how quickly the Senate acts on his nomination, Alito could find himself in a tie-breaking role in pending abortion cases, possibly in his first months on the bench.

Later this month, the court will hear arguments in a New Hampshire case involving a law requiring minors to notify their parents before an abortion. Another case filed by the Bush administration seeks to reinstate a 2003 federal law banning a late-term procedure that opponents call "partial-birth" abortion.

Carl Tobias, a University of Richmond law professor, said that although Alito's opinions suggest he is more conservative than O'Connor, it is difficult to predict how he might rule once on the court.

"It's always unpredictable saying what the docket will look like in 10 years," Tobias said. "It could be high-tech, biotech. ... If it were present-day issues, you'd have to take it case by case."

Alito could help swing the court on death penalty matters, too.

Earlier this year, some of the justices Alito hopes to join overturned his decision to uphold the punishment handed down in a 17-year-old Pennsylvania death penalty case.

Ronald Rompilla was convicted of robbing, stabbing and setting fire to the owner of a tavern in Allentown, Pa., in 1988. He later argued that his right to effective counsel was denied because his public defenders failed to consider material they knew the prosecution planned to use against him.

A lower court sided with Rompilla, but that decision was overturned on appeal. In a 2-1 opinion written for the majority, Alito said Rompilla's attorneys had done enough to represent him.

The Supreme Court saw the case differently and, by a vote of 5-4 in June, overruled Alito and granted Rompilla a new penalty hearing. O'Connor cast the deciding vote.

Although Alito's judicial career _ hundreds of written opinions and participation in thousands of cases _ shows him to be a conservative, his decisions have not always been predictably to the right.

For example, he held that an Iranian woman could establish eligibility for asylum by showing she would be persecuted back home because of her sex, her belief in feminism or membership in a feminist group.

And he supported a high school boy who had been bullied by students who saw him as gay and non-athletic, ruling in the majority that the school had not sufficiently protected him from the taunting.

Alito has argued a dozen times before the Supreme Court, winning eight cases, losing two and splitting on two. He is a stout defender of religious freedoms, but he appears less accommodating of discrimination and harassment claims.

On religion, Alito in 1999 wrote the majority opinion allowing Muslim police officers in Newark, N.J., to keep their beards, broadening an exemption the department had allowed only on medical grounds.

That year, he joined the majority in ruling that a City Hall holiday display in Jersey City, N.J., containing a creche, menorah, a banner celebrating diversity and secular symbols of the season did not offend the constitutional separation of church and state.

Alito wrote the majority opinion in a 1999 decision overturning a wide-ranging anti-harassment policy at the State College Area School District. The court ruled that the district went too far with a policy that prohibited harassment based on everything from race and sexual orientation to "other personal characteristics," including clothing, appearance and social skills.

The suit had been brought by Christian students who wanted to preach against homosexuality.

In one snapshot of a varied career, a Duke University Law School study found that Alito was the most frequent dissenter on the court in the mid-1990s, taking the minority view 17 times in 44 cases heard by the moderate to liberal court.

Even as an odd man out, however, he's not taken lightly.

While the Supreme Court has overturned some of his decisions, in others the high court has agreed with Alito's dissents and rejected the argument of the 3rd Circuit's majority.

In a 1996 dissent, Alito wrote that a state university didn't violate the due process rights of a campus police officer it suspended without pay after learning he had been arrested on drug charges. The Supreme Court agreed, saying a hearing was unnecessary and that the charges against the officer were not baseless.

In a 1997 dissent, Alito sought to throw out the discrimination case of Beryl Bray, a black hotel housekeeper who was denied a promotion and saw the job go to a white woman.

A three-judge panel of the 3rd Circuit said she could take her case before a jury, overturning a lower court decision that she had not made a strong enough case for that.

___

Associated Press writers Jeffrey Gold in Newark, N.J., and Donna Cassata, Gina Holland and Calvin Woodward in Washington contributed to this report.

Copyright 2004 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Republicans Enthusiastic About Alito

Updated 9:57 AM ET November 1, 2005
http://dailynews.att.net/cgi-bin/news?e=pr...8djo4og0&src=ap

By JESSE J. HOLLAND

WASHINGTON (AP) - The White House got the reaction it wanted out of its third Supreme Court nominee, federal appeals judge Samuel Alito: immediate acceptance from the conservatives who helped torpedo President Bush's previous pick.

But abortion rights Democrats are openly talking about trying to block the New Jersey jurist.

"The filibuster's on the table," Democratic Sen. Barbara Boxer of California said as Alito headed back to Capitol Hill on Tuesday. Alito is courting Republicans crucial to his attempt to replace retiring Justice Sandra Day O'Connor.

But Sen. Dick Durbin, D-Ill., the No. 2 Senate Democrat, said, "I don't think we should assume that's going to happen at all." He said Democrats needed to learn much more about Alito's values and beliefs on topics like the right to privacy, women's rights and the environment.

"I don't think we should race to a conclusion here," Durbin said on CBS' "The Early Show." "Ordinarily it takes six to eight weeks to evaluate a Supreme Court nominee. We shouldn't rush to judgment.".....

Battle Lines Over Alito Are Drawn

Updated 2:01 PM ET November 1, 2005

http://dailynews.att.net/cgi-bin/news?e=pr..._051031&src=abc

Despite Samuel Alito's strong conservative record -- and judicial views on abortion -- some experts say it is unlikely Senate Democrats will successfully filibuster his nomination to the Supreme Court.

President Bush nominated Alito, a federal judge on the 3rd U.S. Circuit Court of Appeals, to succeed Sandra Day O'Connor, a key swing vote on the court who announced her retirement last summer. Unlike Harriet Miers, who bowed out last week after scathing criticism from both sides of the aisle, Alito is an experienced judge with a strong conservative record.

"Because it's O'Connor's seat, and because of the changed political dynamics over the last 60 days, the Democrats will be much more oppositional than they were with Roberts," said Brad Berenson, who was associate White House counsel during President Bush's first term and is now an ABC News consultant. "But Alito is no ideologue, and his record will be hard to caricature. I think at the end of the day it'll be almost impossible to filibuster him, and certainly not successfully." .....

Online cafe discussion

http://www.commongroundcommonsense.org/for...ST&f=16&t=41364

http://www.voanews.com/english/2005-10-31-voa41.cfm

Democrats Express Concern Over Bush Supreme Court Nominee
By Deborah Tate
Washington
31 October 2005

President Bush, left, shakes hands with judge Samuel Alito after announcing Alito's selection as Supreme Court nominee in the Cross Hall of the White House Monday, Oct. 31, 2005
A partisan battle is brewing in the U.S. Senate over President Bush's nominee for the Supreme Court, Judge Samuel Alito. Senate Democrats say Judge Alito's record raises questions about his commitment to civil rights.

Senate Democrats say they have not formed a final opinion on the merits of the nomination of Judge Alito to the Supreme Court. But they say a review of his record raises their concern.

Senator Charles Schumer is a New York Democrat and member of the Senate Judiciary Committee that will hold hearings on the nomination.

"A preliminary review of his record raises real questions about Judge Alito's judicial philosophy, his commitment to civil rights, workers' rights, women's rights, the rights of average Americans, which the courts have always looked out for," said Mr. Schumer.

President Bush announced the nomination of the conservative Judge Alito to succeed retiring Justice Sandra Day O'Connor, just days after his first choice for the high court seat, White House lawyer Harriet Miers, withdrew from consideration.

Ms. Miers' nomination had been under fire from some of Mr. Bush's conservative political base. They questioned her qualifications for the bench, and her conservative credentials. Ms. Miers had never served as a judge.

Conservatives welcomed Judge Alito's nomination.

Senator Mitch McConnell is a Kentucky Republican.

"The president has made a truly outstanding choice," said Senator McConnell.

Judiciary Committee Chairman Arlen Specter, a Pennsylvania Republican considered a political moderate, praised Judge Alito.

"He brings to this nomination a very distinguished record," he said.

But Senator Ted Kennedy, a Massachusetts Democrat considered to be among the most liberal lawmakers, argued Mr. Bush bowed to the demands of the most conservative wing of his party in making the nomination. He said, "Mr. Bush picked a nominee, who he hopes will stop the massive hemorrhaging of support on his right wing. This is a nomination based on weakness, not on strength."

At stake in the upcoming confirmation battle is balance of power on the Supreme Court. Retiring Justice O'Connor has often cast the deciding vote on the closely divided court. Conservative Republicans hope, and liberal Democrats fear, that Judge Alito could move the high court rightward.

Judge Alito was asked if he is apprehensive about being the subject of what could be a big fight in the Senate over his nomination.

"I am just looking forward to working with the Senate in the confirmation process, and I will do everything I can to cooperate with them, and to discuss my record as a judge, and the record of what I have done during the other stages of my legal career," he said.

President Bush would like a confirmation vote on the nomination by year's end, although it is not clear if the Senate will be able to meet that deadline, as it has a host of other important legislative matters to finish before it adjourns for the year.

Senate Majority Leader Bill Frist vows an expedited process.

"We are committed to being fair and civil and dignified, and our pledge to you on behalf of the United States Senate is to accomplish that, and to do it as soon as possible," said Mr. Frist.

Although Judge Alito will only need a simple majority vote to be confirmed by the Republican-controlled Senate, Democrats could use procedural tactics to block the nomination, if they determine the nominee is outside what they consider the political mainstream. Democrats say it is too early to predict whether they will pursue such a strategy, but they are not ruling it out.

Republicans have threatened to change Senate rules to ban such tactics, if Democrats decide to block the nomination. Democrats say they may then have to force all legislative activity to a halt.

http://www.latimes.com/news/politics/la-na...ack=1&cset=true

Nominee Has Some Unexpected Supporters
Liberals who have worked with Samuel A. Alito Jr. say he is fair, not a rigid ideologue.

By David G. Savage and Henry Weinstein
Times Staff Writers

November 2, 2005

WASHINGTON — Samuel A. Alito Jr. was quickly branded a hard-core conservative after President Bush announced his nomination, but a surprising number of liberal-leaning judges and ex-clerks say they support his elevation to the Supreme Court.

Those who have worked alongside him say he was neither an ideologue nor a judge with an agenda, conservative or otherwise. They caution against attaching a label to Alito.

Kate Pringle, a New York lawyer who worked last year on Sen. John F. Kerry's presidential campaign, describes herself as a left-leaning Democrat and a big fan of Alito's.

She worked for him as a law clerk in 1994, and said she was troubled by the initial reaction to his nomination. "He was not, in my personal experience, an ideologue. He pays attention to the facts of cases and applies the law in a careful way. He is conservative in that sense; his opinions don't demonstrate an ideological slant," she said.

Jeff Wasserstein, a Washington lawyer who clerked for Alito in 1998, echoes her view.

"I am a Democrat who always voted Democratic, except when I vote for a Green candidate — but Judge Alito was not interested in the ideology of his clerks," he said. "He didn't decide cases based on ideology, and his record was not extremely conservative."

As an example, he cited a case in which police in Pennsylvania sent out a bulletin that called for the arrest of a black man in a black sports car. Police stopped such a vehicle and found a gun, but Alito voted to overturn the man's conviction, saying that that general identification did not amount to probable cause.

"This was a classic case of 'driving while black,' " Wasserstein said, referring to the complaint that black motorists are targeted by police. Though Alito "was a former prosecutor, he was very fair and open-minded in looking at cases and applying the law," Wasserstein said.

It is not unusual for former law clerks to have fond recollections of the judge they worked for. And it is common for judges to speak respectfully of their colleagues. But for a judge being portrayed by the right and left as a hard-right conservative, Alito's enthusiastic backing by liberal associates is striking.

Former federal Judge Timothy K. Lewis said that when he joined the U.S. 3rd Circuit Court of Appeals in 1992, he consulted his mentor, Judge A. Leon Higginbotham Jr. The late Higginbotham, a legendary liberal and a scholar of U.S. racial history, was the only other black judge on the Philadelphia-based court at the time.

"As he was going down the roster of colleagues, he got to Sam Alito. I expressed some concern about [him] being so conservative. He said, 'No, no. Sam Alito is my favorite judge to sit with on this court. He is a wonderful judge and a terrific human being. Sam Alito is my kind of conservative. He is intellectually honest. He doesn't have an agenda. He is not an ideologue,' " Higginbotham said, according to Lewis.

"I really was surprised to hear that, but my experience with him on the 3rd Circuit bore that out," added Lewis, who had a liberal record during his seven years on the bench. "Alito does not have an agenda, contrary to what the Republican right is saying about him being a 'home run.' He is not result-oriented. He is an honest conservative judge who believes in judicial restraint and judicial deference."

In January 1998, Alito, joined by Judge Lewis, ruled that a Pennsylvania police officer had no probable cause to stop a black man driving a sports car after a rash of robberies in which two black males allegedly fled in a different type of sports car. The driver, Jesse Kithcart, was indicted for being a felon in possession of a gun, which police discovered when they patted him down after his car was stopped. After a trial judge refused to suppress the search, Kithcart pleaded guilty but reserved his right to appeal.

"Armed with information that two black males driving a black sports car were believed to have committed three robberies in the area some relatively short time earlier," the police officer "could not justifiably arrest any African-American man who happened to drive by in any type of black sports car," Alito wrote. He said the trial judge had erred in concluding that the police had probable cause that extended to the weapons charge because Kithcart had not been involved in the robberies.

Alito and Lewis sent the case back to the trial judge for new hearings on whether the search was legal. The third judge in the case, Theodore A. McKee, said he would have gone even further.

"Just as this record fails to establish" that the officer "had probable cause to arrest any black male who happened to drive by in a black sports car, it also fails to establish reasonable suspicion to justify stopping any and all such cars that happened to contain a black male," wrote Judge McKee. He said he would have thrown out the search without further proceedings.

Judge Edward R. Becker, former chief judge of the 3rd Circuit, said he also was surprised to see Alito labeled as a reliable conservative.

"I found him to be a guy who approached every case with an open mind. I never found him to have an agenda," he said. "I suppose the best example of that is in the area of criminal procedure. He was a former U.S. attorney, but he never came to a case with a bias in favor of the prosecution. If there was an error in the trial, or a flawed search, he would vote to reverse," Becker said.

Some of his former clerks say they were drawn to Alito because of his reputation as a careful judge who closely followed the text of the law.

Clark Lombardi, now a law professor at the University of Washington, became a clerk for Alito in 1999.

"I grew up in New York City, and I'm a political independent. But I liked Judge Alito because he was a judicial conservative, someone who believed in judicial restraint and was committed to textualism," he said. "His approach leads to conservative results in some cases and progressive results in other cases. In my opinion, he is a fantastic jurist and a good guy."

Some of Alito's former Yale Law School classmates who describe themselves as Democrats say they expect they will not always agree with his rulings if he joins the Supreme Court. But they say he is the best they could have hoped for from among Bush's potential nominees.

"Sam is very smart, and he is unquestionably conservative," said Washington lawyer Mark I. Levy, who served in the Justice Department during the Carter and Clinton administrations. "But he is open-minded and fair. And he thinks about cases as a lawyer and a judge. He is really very different from [Justice Antonin] Scalia. If he is going to be like anyone on the court now, it will be John Roberts," the new chief justice.

Joel Friedman teaches labor and employment law at Tulane University Law School, but is temporarily at the University of Pittsburgh because of Tulane's shutdown following Hurricane Katrina.

"Ideology aside, I think he is a terrific guy, a terrific choice," said Friedman, a Yale classmate of Alito's. "He is not Harriet Miers; he has unimpeachable credentials. He may disagree with me on many legal issues — I am a Democrat; I didn't vote for Bush. I would not prefer any of the people Bush has appointed up until now.

"The question is, is this guy [Alito] going to be motivated by the end and find a means to get to the end, or is he going to reach an end through thoughtful analysis of all relevant factors? In my judgment, Sam will be the latter."

Ben Nelson - D will not filibuster Alito.

looks like another good rep.

Judge Participated in 2002 Vanguard Case Despite Promise to Recuse

By R. Jeffrey Smith
Washington Post Staff Writer
Tuesday, November 1, 2005; Page A11


When Samuel A. Alito Jr. appeared before the Senate Judiciary Committee 15 years ago as a nominee for the appellate bench, he promised in writing to disqualify himself from "any cases involving the Vanguard companies," a stock and mutual fund firm in which he had substantial personal investments.

That is why several Senate aides said they were wondering yesterday why Alito agreed to participate in 2002 with two other judges in an appellate case in which he ruled in Vanguard's favor, dismissing a complaint that the company had improperly seized some private accounts and blocked the owner's widow from obtaining the funds they contained.


Alito's ruling, issued on April 12, 2002, was withdrawn the following year by Anthony Joseph Scirica, the chief administrative judge for the 3rd Circuit where Alito worked. Scirica acted after the widow complained in a court motion that Alito's participation was "unlawful" under judicial ethics rules.

"It was improper for him to participate in the decision," said retired Northeastern University law professor John G.S. Flym, who helped prepare the court motion on behalf of Shantee Maharaj, then of Wayne, Pa. Her husband had established the accounts that Vanguard froze and then disbursed to others in settling a business dispute with her husband's former partner.

"The law was quite clear," Flym said in an interview, even though some controversy exists among judges about how to interpret the rules. "It's clear that [Alito's] . . . holdings were substantial" in Vanguard company investments.

White House spokeswoman Dana Perino said Alito had become involved in the case because a "computer screening program" at the 3rd Circuit had failed to pick up the potential conflict. She said that "as soon as the matter was brought to [Alito's] attention" by Maharaj's motion, he wrote a letter to Scirica requesting that the ruling be withdrawn and the case presented to a new panel.

Perino said she did not have a copy of Alito's letter, and Scirica did not return a telephone call yesterday evening. "Judge Alito has spent his entire career in public service, and his integrity is unquestioned," Perino said.

The case, as it was presented to the appellate court, specifically names Vanguard Group Inc., Vanguard Fiduciary Trust Co. and Vanguard's Morgan Growth Fund Inc. as some of the litigants. The motion complaining about Alito's involvement, citing Alito's financial disclosure statement for 2002, said he owned shares in 17 Vanguard funds at the time of his ruling, with a total value between $390,000 and $975,000.

Judicial ethics rules require disqualification whenever judges know they have "ownership of a legal or equitable interest, however small" in a company that is party to a legal dispute. While the rule is meant primarily to cover direct holdings in the stock of one company, Flym noted that the Vanguard Fund describes itself as being owned by the "fund's shareholders."

Perino said that after the decision was withdrawn, the case was heard by another panel of 3rd Circuit judges. But Flym and Maharaj said the new panel did not allow the case to be reargued before it issued the same decision with an added footnote.

George Washington University constitutional law professor Mary Cheh said she agreed that "even though these are broadly held funds . . . if you are aware of the holdings, you should recuse yourself because you stand to benefit one way or the other. That would be the ordinary course" for a judge with such investments.

Researcher Madonna Lebling contributed to this report.

Take this poll at frist's web site

QUOTE(heritage @ Nov 2 2005, 04:37 PM)
Bill Frist VOLPAC - political action website

http://www.volpac.org/index.cfm?FuseAction...View&Blog_id=30

Question of the Day
11:42 AM - November 1st, 2005 The United States Constitution grants the Senate the power to confirm or reject nominees to the federal courts.

This authority is known as advice and consent.

The Constitution also empowers the Senate to determine the procedures under which the confirmation authority shall be used.

A majority of Senators can establish these procedures.

Should the Democrats seek by filibuster to block a confirmation vote on Judge Sam Alito, and thus deny Senators the right to advise and consent, would you support my seeking to exercise the constitutional option or "nuclear option" to ensure a fair up or down vote on Judge Alito occurs?

To cast your vote, click here and answer our opinion poll question in the upper right corner of our website. Written by Bill Frist, M.D.

VOTE NO

http://www.volpac.org/

68% SAY YES SO FAR

Statement from the National Archives on Records Relating to Supreme Court Nominee Samuel Alito

11/3/2005 10:52:00 AM


--------------------------------------------------------------------------------

To: National Desk

Contact: National Archives and Records Administration, 202-501-5526

WASHINGTON, Nov. 3 /U.S. Newswire/ -- Following is a statement from the National Archives on records relating to Supreme Court Nominee Samuel Alito:

In response to several FOIA requests, the National Archives is searching for records pertaining to Supreme Court Nominee Samuel Alito. Archivists have identified several voluminous Department of Justice (DOJ) series of records that may have records pertaining to Alito, and are searching them for documents that are from or to him, have him mentioned in the subject line, or list him on the "CC" line. Seven archivists are working full-time on this to expedite the project. It will take several weeks for the National Archives to complete its search of the DOJ records. The Archives is also searching for records on Judge Alito in the Ronald Reagan and George Bush Presidential Libraries and in the National Archives Regional Archives.

The National Archives will make these documents available to the public as possible. A press release will be issued to announce the openings.

------

For Press information, contact the National Archives Public Affairs Staff at 202-501-5526.

http://www.usnewswire.com/

http://rawstory.com/news/2005/Democratic_l...ab_at_1116.html

Santorum to join conservative Christian rally for Alito

Thursday, January 05, 2006
By Maeve Reston, Post-Gazette National Bureau
http://www.post-gazette.com/pg/06005/632824.stm

--------------------------------------------------------------------------------

WASHINGTON -- In a step that could shore up support from his conservative base but might carry political risks, Sen. Rick Santorum will speak Sunday at a controversial conservative Christian rally bolstering support for Supreme Court nominee Samuel Alito on the eve of the judge's confirmation hearings.

Mr. Santorum, R-Pa., will join Christian leaders, including the Rev. Jerry Falwell of Liberty University and James Dobson of Focus on the Family, at Justice Sunday III, which will be telecast and webcast to millions of viewers from the Greater Exodus Baptist Church in Philadelphia.

Mr. Falwell yesterday said speakers would address what they view as the "disappearance of religious freedom in many corners" of America and what he described as "hostility" toward Christianity exemplified by limits on public references to Christmas and God.

The program will highlight Judge Alito's record on religious expression during his tenure on the 3rd U.S. Circuit Court of Appeals in Philadelphia. In a 1999 case promoted by conservatives, for example, Judge Alito authored an opinion for the court stating that it was constitutional for Jersey City to have a holiday display at its City Hall that included a creche and a menorah.

Family Research Council President Tony Perkins said Mr. Santorum was invited to speak because he has been a leader on issues of religious expression and religious freedom during his Senate tenure.

The two previous iterations of Justice Sunday created controversy because participants' remarks about "activist judges" who had handed down decisions allowing gay marriage or criticizing prayer in school were viewed by some as polarizing and inflammatory.
--------------------------------------------------------------------------------
(Maeve Reston can be reached at mreston@post-gazette.com or 202-488-3479.)

Confirmation Hearing Will Be No Walk in the Park for Alito

Updated 7:56 PM ET January 6, 2006
http://dailynews.att.net/cgi-bin/news?e=pr..._060106&src=abc

Next week's Senate confirmation hearing for Samuel Alito will be far more contentious than that of now-Chief Justice John Roberts (who had a skimpier paper trail to attack); Alito is poised to replace the retiring Justice Sandra Day O'Connor, who was a critical swing vote on abortion, civil rights, affirmative action, First Amendment issues, employment law and the death penalty.

Simply stated, more is at stake as Alito -- who has resolutely established a conservative legal agenda -- is likely to change the court's ideological balance.

A recent Harris Poll shows Americans divided on Alito's confirmation, so count on tough grilling on these key areas, among others:

Abortion

Democrats cannot wait to cross-examine Alito on two 1985 documents in which he stated the Constitution does not protect a right to abortion and advocated a long-term strategy to overturn Roe v. Wade by gradually chipping away at it. Alito's supporters respond that he has twice voted to invalidate restrictions on abortions, and that his 15 years on the bench show he exercises judicial restraint and respects precedent. (The rebuttal to this, of course, is that as a Supreme Court justice, Alito can overturn precedent.)

Abortion remains front and center for the court. Although it has already been argued, Alito could play a role in Ayotte v. Planned Parenthood, the New Hampshire parental-notification case, because it will have to be reargued next term if the current justices deadlock. And it is just a matter of time before the Supreme Court agrees to hear a challenge to the federal law banning late-term abortions.

One Person, One Vote

This has gotten very little media attention, but it may be Alito's Achilles' heel, and frankly could do more to derail his nomination than any other issue. In a 1985 job application, Alito wrote that he disagreed with several Warren court decisions, including those on congressional reapportionment. This is a stunning statement, not to mention a radical position, as the "one person, one vote" principle has been the cornerstone of American democracy since the Supreme Court decision of Baker v. Carr in 1962.

Death Penalty and Criminal Law

Alito's time as a federal judge reveals he seldom sides with criminal defendants. And he has ruled restrictively on death-penalty appeals.

Presidential Powers

With the recent brouhaha over Bush's secret spying program, several senators have told Alito they plan to question him on the scope of the president's authority to allow warrantless eavesdropping. Senators will be armed with a recently released 1984 memo in which Alito wrote that the attorney general should have absolute immunity from being sued for approving illegal, warrantless wiretaps, though Alito counseled taking a more moderate approach in arguments before the Supreme Court.

Conclusion

Despite the anticipated mud wrestling with senators, the filibuster appears unlikely to be invoked, and Samuel Alito looks set to be confirmed as an associate justice.

Petition your senators to oppose Alito

http://www.moveonpac.org/alitoletters/

http://www.SaveTheCourt.org/

Sen. Leahy to Oppose Alito Nomination

Updated 1:15 PM ET January 19, 2006

Democratic Sen. Patrick Leahy said Thursday he will oppose Supreme Court nominee Samuel Alito's confirmation, saying he did not believe the conservative judge would be independent of President Bush and the executive branch in his future rulings.

"At a time when the president is seizing unprecedented power, the Supreme Court needs to act as a check and to provide balance," Leahy, the ranking Democrat on the Judiciary Committee, said in a speech at Georgetown University's law school. "Based on the hearing and his record, I have no confidence that Judge Alito would provide that check and balance."

It is no surprise that the Vermont senator is voting against Alito. He was one of the nominee's harshest interrogators at Alito's confirmation hearings last week.

Leahy also has been a critic of Bush's actions in the war on terror, including warrantless wiretapping on American citizens.

"In an extraordinary era of governmental intrusions into the lives of ordinary Americans, when it has been left to the Supreme Court to restore balance, it is difficult to have any confidence that this nominee will serve as an effective check on his patron or on the government which he has spent his entire legal practice representing," Leahy said.

He became the latest Democrat to announce a position on Alito, a former U.S. attorney and lawyer for the Reagan administration. Democrats Edward Kennedy of Massachusetts, Barbara Mikulski of Maryland and Max Baucus of Montana announced their opposition to Alito on Wednesday.

Leahy and Baucus both voted for Chief Justice John Roberts' confirmation last year, while the others opposed him.

Sen. Ben Nelson of Nebraska is the only Democrat to announce that he will vote for Alito's confirmation next week. He also voted for Roberts' confirmation.

The Judiciary Committee is expected to vote Alito's nomination out of committee on Wednesday in a party-line vote. The full Senate is expected to debate and vote on the nomination that same week, with its Republican majority confirming the federal appeals judge.

Alito is continuing to visit Democratic and Republican senators, spending time with Sen. Tom Carper, D-Del., and new Sen. Robert Menendez, D-N.J., Thursday morning. Carper has not taken a position on Alito's nomination.

January 19, 2006
Leahy Says He'll Vote Against Alito
By MARIA NEWMAN
In an indication of how Judge Samuel A. Alito Jr. may fare when the Senate Judiciary Committee votes on his confirmation next Tuesday, Senator Patrick J. Leahy of Vermont today became the first Democrat on the committee to declare his intention to vote against him.

Mr. Leahy told an audience at the Georgetown Law School that he did not believe Judge Alito would provide the necessary checks and balances to an executive branch that might exceed its powers.

"I cannot vote for this nomination," Mr. Leahy said. "I will not vote for this nomination."

Mr. Leahy, the ranking Democrat on the committee, said he was disturbed by Judge Alito's responses during the committee hearings last week on the issues of privacy and conflicts between government and individuals. He also said he believed Judge Alito, who has spent his entire legal career working for the government, would be too deferential to what the senator called his "patrons."

"At a time when the president is seizing unprecedented power, the Supreme Court needs to be a check and balance," he said. "I have no confidence that Judge Alito will provide that check and balance."

Judge Alito is expected to win the vote of the Judiciary Committee, with its 10 Republicans and 8 Democrats. But Democratic leaders seemed to be laying out a strategy, beginning with Mr. Leahy's speech today, to put forth the arguments for their opposition in order to make a campaign issue of his decisions on the court if he is confirmed, as expected.

In a closed door meeting of the Democratic caucus on Wednesday, Mr. Leahy and Senator Harry Reid of Nevada, the Democratic leader, made their case against Judge Alito.

If he is confirmed by the committee, the full Senate will debate his nomination beginning Jan. 25.

In Georgetown today, Mr. Leahy talked about the issue that was a major topic during the hearings, Judge Alito's views on the White House's effort to expand the definition of executive power.

The senator said he was disturbed by President Bush's recent acknowledgment that since 2002 he has repeatedly authorized the National Security Agency to conduct electronic surveillance without warrants.

Mr. Leahy said he was also concerned that on Dec. 30, after Mr. Bush signed an amendment introduced by Senator John McCain, Republican of Arizona, to ban cruel, inhumane or degrading treatment of detainees, the president issued a "signing statement" asserting the administration's ability to interpret the law as it saw fit.

Along with his signature authorizing the amendment, Mr. Bush added a statement saying that the executive branch would construe the measure "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief and consistent with the constitutional limitations on the judicial power."

"This is an extraordinary era of governmental intrusion into the lives of ordinary, average Americans," Mr. Leahy said. "It's been left to the Supreme Court to restore a balance."

Mr. Leahy said he voted in favor of the nominations of every member on the current court, including Chief Justice John G. Roberts Jr., who was nominated by President Bush last year. But he would oppose Judge Alito, he said, because he seems to support, in his previous writings and statements, what many see as the Bush administration's drive to expand the powers of the president.

"It's difficult to have confidence in a nominee who will not serve as an effective check on his patron or on the government he has spent his legal practice representing," he said.



Copyright 2006The New York Times Company

January 23, 2006
Editorial
Judge Alito's Radical Views
If Judge Samuel Alito Jr.'s confirmation hearings lacked drama, apart from his wife's bizarrely over-covered crying jag, it is because they confirmed the obvious. Judge Alito is exactly the kind of legal thinker President Bush wants on the Supreme Court. He has a radically broad view of the president's power, and a radically narrow view of Congress's power. He has long argued that the Constitution does not protect abortion rights. He wants to reduce the rights and liberties of ordinary Americans, and has a history of tilting the scales of justice against the little guy.

As senators prepare to vote on the nomination, they should ask themselves only one question: will replacing Sandra Day O'Connor with Judge Alito be a step forward for the nation, or a step backward? Instead of Justice O'Connor's pragmatic centrism, which has kept American law on a steady and well-respected path, Judge Alito is likely to bring a movement conservative's approach to his role and to the Constitution.

Judge Alito may be a fine man, but he is not the kind of justice the country needs right now. Senators from both parties should oppose his nomination.

It is likely that Judge Alito was chosen for his extreme views on presidential power. The Supreme Court, with Justice O'Connor's support, has played a key role in standing up to the Bush administration's radical view of its power, notably that it can hold, indefinitely and without trial, anyone the president declares an "unlawful enemy combatant."

Judge Alito would no doubt try to change the court's approach. He has supported the fringe "unitary executive" theory, which would give the president greater power to detain Americans and would throw off the checks and balances built into the Constitution. He has also put forth the outlandish idea that if the president makes a statement when he signs a bill into law, a court interpreting the law should give his intent the same weight it gives to Congress's intent in writing and approving the law.

Judge Alito would also work to reduce Congress's power in other ways. In a troubling dissent, he argued that Congress exceeded its authority when it passed a law banning machine guns, and as a government lawyer he insisted Congress did not have the power to protect car buyers from falsified odometers.

There is every reason to believe, based on his long paper trail and the evasive answers he gave at his hearings, that Judge Alito would quickly vote to overturn Roe v. Wade. So it is hard to see how Senators Lincoln Chaffee, Olympia Snowe and Susan Collins, all Republicans, could square support for Judge Alito with their commitment to abortion rights.

Judge Alito has consistently shown a bias in favor of those in power over those who need the law to protect them. Women, racial minorities, the elderly and workers who come to court seeking justice should expect little sympathy. In the same flat bureaucratic tones he used at the hearings, he is likely to insist that the law can do nothing for them.

The White House has tried to create an air of inevitability around this nomination. But there is no reason to believe that Judge Alito is any more popular than the president who nominated him. Outside a small but vocal group of hard-core conservatives, America has greeted the nomination with a shrug - and counted on its senators to make the right decision.

The real risk for senators lies not in opposing Judge Alito, but in voting for him. If the far right takes over the Supreme Court, American law and life could change dramatically. If that happens, many senators who voted for Judge Alito will no doubt come to regret that they did not insist that Justice O'Connor's seat be filled with someone who shared her cautious, centrist approach to the law.



Copyright 2006The New York Times Company

January 24, 2006
Republicans to Give Alito Committee Win
By THE ASSOCIATED PRESS
Filed at 7:19 a.m. ET

WASHINGTON (AP) -- Supreme Court nominee Samuel Alito takes his first step toward the high court with a preordained Senate Judiciary Committee victory Tuesday, but the strength of opposition among panel Democrats may forecast his margin of victory in the full Senate.

The GOP-controlled committee was advancing the nomination of Alito -- President Bush's pick to replace retiring Justice Sandra Day O'Connor -- on Tuesday. All 10 Republican senators already have announced their support for the conservative judge, leaving the eight Democrats with no way to stop the committee from giving him a positive report.

''You don't have to worry about him in the committee,'' Bush said at Kansas State University on Monday. He called Alito ''a very, very smart, capable man. When you talk to Sam Alito, you think, 'smart judge.'''

But Alito's liberal critics are worried that Alito may defer too much to Bush and swing the court to the right. They fear his replacement of O'Connor will bring conservatives a decisive fifth vote on cases involving abortion, affirmative action and the death penalty.

Half of the committee's eight Democrats -- Patrick Leahy of Vermont, Edward Kennedy of Massachusetts, Dick Durbin of Illinois and Dianne Feinstein of California -- have announced their opposition to his nomination. Many expect the other four -- Herb Kohl and Russ Feingold of Wisconsin, Joseph Biden of Delaware and Charles Schumer of New York -- to join them.

After the committee votes, Alito's nomination goes to the full Senate for a final vote as early as this week. Republicans want Alito on the Supreme Court before Bush gives his State of the Union address on Jan. 31.

In recent judicial battles, a 10-8 party line vote would be the first sign of the possibility of a Democratic-led filibuster. But Democrats are not expected to try that with Alito, a former federal prosecutor and lawyer for the Reagan administration who parried sharp Democratic attacks on his judicial record and personal credibility without a major stumble during his confirmation hearings earlier this month.

Democrats are expected, however, to try to persuade as many senators in their party to vote against him as possible on the Senate floor.

Critics of Alito plan to protest and march this week to try to turn votes against the 55-year-old judge who is now on the 3rd U.S. Circuit Court of Appeals.

Only one Democrat so far is supporting Alito, conservative Sen. Ben Nelson of Nebraska. Conservative Chief Justice John Roberts won the votes of 22 Democrats last year.

By comparison, 11 Democrats broke with their party and voted for President George H.W. Bush's nominee -- Clarence Thomas -- in 1991. Thomas' 52-48 confirmation vote was the closest margin of success for a Supreme Court justice in a century.

But few expect Alito's opponents to be successful. Most, if not all, of the Senate's 55 Republicans are expected to support Alito and most of the 44 Democrats to oppose him. Independent Sen. Jim Jeffords of Vermont has not said how he will vote.

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On the Net:

Senate Judiciary Committee: http://judiciary.senate.gov

Supreme Court: http://supremecourtus.gov

White House: http://www.whitehouse.gov



Copyright 2006 The Associated Press

Alito's Clear And Present Danger
Paul Rogat Loeb
January 24, 2006


Paul Rogat Loeb is the author of The Impossible Will Take a Little While: A Citizen's Guide to Hope in a Time of Fear, named the "Number 3 Political Book of 2004" by the American Book Association. See www.paulloeb.org

One decision doesn't make a career, but an alarm should have sounded when Chief Justice Roberts joined Antonin Scalia and Clarence Thomas in overriding the will of Oregon voters and attempting to overrule Oregon's Death With Dignity law. Although the Court's current majority sustained the law, this was the first major split decision of the Roberts court. And by contradicting all his fine-sounding phrases about Federalist principles (much as the five justices did in Bush v. Gore) Roberts made clear that his political beliefs will guide his interpretations. If there are doubts about his agenda, and where his loyalties lie, I'd suggest that this should bury them.

Many of us believed this would happen when we urged a no vote on Roberts. But he was well-spoken and pedigreed, praised moderation at every turn, and evaded the hard questions. The Democrats never mounted a serious challenge.

Now the Senate faces Alito, who has left a far more unambiguous trail supporting centralization of executive power, incursions of government into private life, and the right of corporations to avoid oversight and regulation. After hearings that illuminated nothing except his ability to play dodge ball, he's likely to receive considerably more negative votes.

But for the moment, the Democrats are still hesitant to filibuster.

The Oregon decision should remind them of the stakes. It should remind any Republicans who'd remotely lay claim to the attribute of "moderate." It should give an incentive to challenge the nomination with every tool available, including the filibuster-particularly in a time when Bush has squandered his political standing through his own evasions, incompetencies and lies. Just as valuable New Deal programs like the National Recovery Administration and Agricultural Adjustment Act were struck down by a court that was the legacy of Presidents Hoover, Taft and Harding (some of whose justices also opposed progressive taxation, the minimum wage and any attempts at corporate regulation), the confirmation of Alito and Roberts could cast a shadow over American politics for the next thirty years.

As the Oregon opinion reminds us, the threat of Alito's nomination isn't abstract. It's a clear and present danger that can only be stopped by our Senators finding the courage to challenge an administration that respects only power. That means using the filibuster to talk about the assaults by this administration and their judicial surrogates on our democracy and on our ability to address our most urgent common problems. If not now, then when?

January 24, 2006
Senate Panel Votes Along Party Lines to Endorse Alito
By DAVID STOUT
WASHINGTON, Jan. 24 - The Senate Judiciary Committee voted strictly along party lines today to endorse Judge Samuel A. Alito Jr. for a seat on the Supreme Court, sending the nomination to the full Senate, where confirmation is all but certain.

The 10-to-8 committee vote cleared the way for the Senate to act on President Bush's nominee as soon as Friday. Since Republicans have 55 seats in the Senate, Judge Alito's prospects are excellent, even if most Democrats oppose him, as expected.

Judge Alito, who has sat on the United States Court of Appeals for the Third Circuit, would replace Justice Sandra Day O'Connor. Since he is 55 years old and apparently in good health, he could sit on the high court for many years and, in the opinion of many who follow the court, tilt it considerably to the right.

Republicans and Democrats on the committee offered starkly different views of the nominee today, with Republicans calling him superbly qualified in terms of intellect and integrity - "a towering legal figure," as Jeff Sessions, Republican of Alabama, put it - and Democrats describing him as a jurist who favors governmental power over individual rights and big business over working-class people.

The nominee is a jurist "with achievements of the highest order," Senator Arlen Specter, Republican of Pennsylvania and chairman of the committee, said before casting his vote. Mr. Specter said that contrary to the complaints of committee Democrats, the judge answered questions "as far as he could go" during three day of hearings.

Senator Specter is one of only a few Senate Republicans who support abortion rights, but he said Judge Alito had convinced him that he does indeed regard the 1973 Roe v. Wade decision as "settled law" not easily overturned.

The eight committee Democrats argued that, despite his intellectual credentials, he does not belong on the Supreme Court. They said his decisions in 15 years as a judge and his paperwork as a young lawyer in the Reagan administration signal that he would try to overturn abortion rights and be unsympathetic to civil liberties in general.

Senator Dianne Feinstein, Democrat of California, said that if a person favors a woman's right to an abortion, "one cannot vote for Judge Alito. It's really that simple."

Senator Patrick J. Leahy of Vermont, the panel's ranking Democrat, said Judge Alito had been deliberately vague in answering questions from committee members and had said nothing to indicate he would be an "effective constitutional check on the presidency." Senator Charles E. Schumer, Democrat of New York, agreed. The nominee, he said, had offered committee members only "artful evasions and pleasant banalities."

Mr. Leahy was one of three committee Democrats who voted for Judge John G. Roberts Jr. to be chief justice of the United States. The others were Russell D. Feingold and Herb Kohl, both of Wisconsin. Mr. Feingold said he had "grave concerns" that Judge Alito would not stand for the Bill of Rights and against government intrusion, while Mr. Kohl said that to vote for Judge Alito would be "to gamble with our liberties."

Republicans and Democrats almost seemed to be describing different people as they gave their reasons for voting "yes" or "no."

Senator Orrin G. Hatch, Republican of Utah, said Judge Alito deserves a seat on the high court "by any reasonable standard." Another Republican, Charles E. Grassley of Iowa, agreed and said the judge's opponents had done their best to distort the nominee's record. And Jon Kyl, Republican of Arizona, said Judge Alito was one of the most qualified nominees in decades.

But Senator Edward M. Kennedy, Democrat of Massachusetts, said Judge Alito's record portrays a jurist who favors a "sweeping expansion of presidential power" at the expense of personal liberties, and one who would do little to address the "inequalities and injustices in our society."

Senator Joseph R. Biden Jr., Democrat of Delaware, cited Justice O'Connor's much-quoted statement, in a ruling that upheld the right of detainees to challenge the basis of their detention, that a state of war was not "a blank check" for presidential powers. He said he feared that Judge Alito did not share Justice O'Connor's philosophy.

Abortion was perhaps the most polarizing issue during the committee hearing on Judge Alito's nomination. Two Republicans, Sam Brownback of Kansas and Tom Coburn of Oklahoma, were as ardent in their opposition to abortion as Senator Feinstein was in her support of abortion rights. Mr. Brownback said today he hopes that Roe v. Wade will be overturned one day, so that the issue of abortion will be returned to the states. Perhaps then, he said, society will no longer "violate the dignity of the unborn."

The other members of the Judiciary Committee are Mike DeWine of Ohio and John Cornyn of Texas, Republicans, and Richard J. Durbin, Democrat of Illinois.

The committee outcome today portends a vote in the full Senate much closer than that which made John Roberts chief justice. Half the Senate's 44 Democrats (and independent James Jeffords of Vermont) voted in favor of Judge Roberts, who was confirmed by 78 to 22. But only one Democrat, Ben Nelson of Nebraska, has pledged to vote for Judge Alito.

One committee Republican, Lindsey Graham of South Carolina, said he was saddened that the vote today was strictly according to party and that Judge Alito was likely to get only a handful of Democratic votes in the full Senate. "What did you expect President Bush to do when he won?" Mr. Graham asked rhetorically.



Copyright 2006The New York Times Company

Democrats break silence on Alito: Filibuster unlikely, frustration high
John Byrne
Published: January 25, 2006


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Senate Democrats are buckling down for the final battle on conservative Bush Supreme Court nominee Samuel Alito, and senior aides say they will be unable to stop his final confirmation to the court.

Advisers to Democratic senators on the Judiciary Committee express a palpable frustration at being unable to stop the man who most believe will significantly shift the nation’s highest court to the right. In conversations over the last week, aides in various Senate offices have privately told RAW STORY of their consternation with how the Alito confirmation process has played out.

Today, a senior Democratic aide admitted the filibuster is a “long shot,” and that some Democrats who have announced their intention to vote against Alito have signaled they will not support a move to filibuster the vote.

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In a filibuster, 40 senators can block the nomination from reaching the Senate floor by voting against a procedure known as “cloture.” However, senators can still vote for cloture and then vote against Alito in the final vote. A vote for cloture means only that the senator supports a vote being held.

In other words, those who oppose Alito can still vote to support his nomination coming up for a vote – meaning that only 51 votes are needed to ensure his confirmation. An Associated Press report Wednesday said 51 senators will vote for Alito.

“There are a lot more people that want to vote no and think he’s not the right guy, and a lot less people who want to support the filibuster,” one veteran aide said.

The Democrats’ inability to block Alito – the second conservative nominee President Bush has tapped to join the Supreme Court this year – has stirred frustration among Democratic members in the Senate. One longtime staffer went so far as to accuse the caucus of “myopia.”

“The myopia among too many Senate Democrats is stunning,” the aide said. “They can’t see this is the fight for the future of the Supreme Court. Three years from now if Justice Alito has rolled back the right to choose, Democrats should want to be remembered for fighting tooth and nail to stop this guy.”

“This is a fight for history, you can’t just take the issue off the table,” the aide continued. “Does the country understand what’s at stake right now? Probably not. But they will when Alito does damage to our Constitution, and if we don’t fight now, voters will say a pox on both our houses.”

One aide said part of the problem is that Democratic senators haven’t felt a groundswell of opposition from constituents. Polls show that Alito’s nomination is supported by most Americans.

“People aren’t engaged in this fight,” one senior aide said. “The reality is this isn’t something that American people are calling in droves about. We’re getting more calls in on NSA spying than we are on Alito.”

Another longtime aide to a senator on the Judiciary Committee said Democrats feel they simply can’t win and are looking to focus their energy elsewhere.

“I think that people kind of saw the writing on the wall, and that [opposition to Alito] doesn’t have a lot of energy. Oddly the whole hearing in the aftermath of [John] Roberts and [Harriet] Miers -- everybody thought it was going to be the big enchilada because of the stakes, replacing a moderate rather than a conservative.”

“I guess nobody anticipated the dynamic. This has kind of sputtered out, and I think the Democrats are like, ‘Look, Is this the issue that we want to dominate the news, our attempt to present ourselves to the American public.’ I think that Democrats think that if there was a filibuster, if this thing went on for a few months, in the end we wouldn’t win... [and] there are so many other things where we could take advantage of our strength relative to the Republicans here.”

The aide compared Alito’s performance with that of Chief Justice John Roberts, another Bush nominee who was confirmed this summer. Both men, he said, were polished and didn’t have any “egregious” disqualifying characteristics in the eyes of the American public.

“Alito is not our choice obviously but its hard to say that there’s something so egregious that’s completely disqualifying,” the aide remarked. “He’s just not that scary a person like a Bork..”

Still, one aide close to the Democratic leadership said that they hadn’t given up hope of a filibuster.

“Things change every fifteen minutes,” the staffer quipped.

Support a Filibuster Against Judge Alito John Kerry
Dear Friends,

Yesterday, Senator Ted Kennedy and I told our colleagues that we supported a filibuster of Judge Alito's nomination for the Supreme Court. And we weren't alone. But the bottom line is that it takes more than two or three people to filibuster successfully. It's not "Mr. Smith Goes to Washington." If you want to stop Judge Alito from becoming Justice Alito, use your own email list and organize. We can't just preach to our own choir. We need to prove to everyone - from our friends and neighbors to our fellow Senators - that the American people know Judge Alito will take our country in the wrong direction, and they expect something to be done about it.


So I'm asking you to join Senator Kennedy, me, and concerned citizens across America who are signing this petition to support a filibuster. If there was ever a time to forward an email on to friends and family, this is it. One way or another, we're going to find out in the next few days if Judge Alito is going to become Justice Alito. You know where I stand. The time to make your voice heard is now. So please sign this filibuster petition and get as many friends as you can to do the same.

Sign the filibuster petition
If Judge Alito gets on the Supreme Court, it will be an incredible mistake for America. And remember, this is one mistake that we can never take back. I voted against Justice Roberts, but I feel even more strongly about Judge Alito. Why? Rather than live up to the promise of "equal justice under the law," he has consistently made it harder for the most disadvantaged Americans to have their day in court. He routinely defers to excessive government power no matter how much government abuses that power. And, to this date, his only statement on record regarding a woman's right to privacy is that she doesn't have one. There isn't a shred of doubt in my opposition to Judge Alito's nomination. I spent a lot of time over the last few years thinking about what kind of person deserves to sit on the highest court in the land, so I don't hesitate a minute in saying that Judge Alito is not that person. His entire legal career shows that, if confirmed, he will take America backward. People can say all they want that "elections have consequences." Trust me, I understand. But that doesn't mean we have to stay silent about Judge Alito's nomination.

Sign the filibuster petition
President Bush had the opportunity to nominate someone who would unite the country in a time of extreme division. He chose not to do this, and that is his right. But we have every right -- in fact, we have a responsibility -- to fight against a radical ideological shift on the Supreme Court. This nomination was a sellout to the demands of the extreme right wing of the Republican Party. The president gave no thought to what the American people really wanted - or needed. So now that the president and Judge Alito have proven they won't stand up for the majority of Americans, we have to stand up. We have to speak out. That's the true meaning of "advice and consent."

Sincerely,

John Kerry

January 27, 2006
Republicans Clear the Way for Alito Vote
By THE ASSOCIATED PRESS
Filed at 1:54 p.m. ET

WASHINGTON (AP) -- Supreme Court nominee Samuel Alito enjoys sufficient bipartisan support to surmount any Senate filibuster attempt by minority Democrats, Senate leaders said Friday.

A final vote making the New Jersey jurist the nation's 110th Supreme Court justice is scheduled for Tuesday, hours before President Bush gives his State of the Union address to Congress and the nation.

Democrats and Republicans alike said the 55-year-old conservative jurist will get more than the 60 votes need to cut off debate on the Senate floor Monday.

''Everyone knows there are not enough votes to support a filibuster,'' Senate Democratic leader Harry Reid of Nevada said Friday. Senate Majority Leader Bill Frist, R-Tenn., said the same thing on Thursday. ''A bipartisan majority will vote to confirm Judge Alito as Justice Alito,'' Frist said.

Alito's supporters already have those commitments, with 53 of the Republicans' 55-member majority and three Democrats -- Robert Byrd of West Virginia, Tim Johnson of South Dakota and Ben Nelson of Nebraska -- already publicly supporting his confirmation as the replacement for retiring Justice Sandra Day O'Connor.

Sen. Kent Conrad, D-N.D., also announced Friday he is ''leaning in favor of voting for'' the conservative judge. ''It is clear to me that a majority of the American people and the people I represent support his confirmation,'' he said after meeting with Alito in his office.

Senior Republican Sen. Ted Stevens of Alaska also threw his support to Alito. Stevens said he closely monitored Alito's commitment during his confirmation hearings to ''respect'' past rulings when it comes to Roe v. Wade, the Supreme Court's landmark abortion rights decision.

''As I vote to confirm his nomination, I do so under the assumption that Judge Alito will uphold this commitment,'' said Stevens, who supports abortion rights.

Reid, who will vote on Monday with Democrats who want to filibuster Alito and against confirmation on Tuesday, said those votes are ''an opportunity to people to express their opinion on what a bad choice it was to replace Sandra Day O'Connor.''

As the floor debate ensued Friday, the leaders of the filibuster attempt -- Massachusetts Sens. Edward Kennedy and John Kerry -- were trying to drum up support in their caucus for blocking Alito.

They were counting senators like Russ Feingold of Wisconsin, Dick Durbin of Illinois and Debbie Stabenow on their side. Other senators, including ranking Judiciary Democrat Patrick Leahy of Vermont and Charles Schumer of New York, head of the Senate Democrats' fundraising arm, did not say Thursday whether they supported the effort.

''There's some division in our caucus,'' Kennedy conceded. ''It's an uphill climb at the current time, but it's achievable.''

Many Democrats contended that Alito's confirmation would put individual rights and liberties in danger. The former federal prosecutor and lawyer for the Reagan administration would replace O'Connor, the court's first female justice and the swing vote on several 5-4 rulings that maintained abortion rights, preserved affirmative action and limited the application of the death penalty.

''The president has every right to nominate Samuel Alito to the Supreme Court,'' Kerry said. ''It's our right and our responsibility to oppose him vigorously and to fight against this radical upending of the Supreme Court.''

Asked if the administration was taking Kerry's call for a filibuster seriously, White House press secretary Scott McClellan chuckled on Friday and said: ''I think it was a historic day yesterday. It was the first ever call for a filibuster from the slopes of Davos, Switzerland.''

Republicans immediately began criticizing Democrats for even considering a filibuster.

''Continuing to threaten a filibuster, even after it is crystal clear that Democrats don't have the necessary votes to sustain their obstruction, is needless, strange and at odds with many of their fellow Democrats,'' said Sen. John Cornyn, R-Texas.

Bush urged the Senate to go ahead and put the 55-year-old judge from the 3rd U.S. Circuit Court of Appeals on the Supreme Court.

Alito ''understands the role of a judge is not to advance a personal and political agenda,'' the president said Thursday at the White House. ''He is a decent man. He's got a lot of experience and he deserves an up-or-down vote in the Senate.''

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Associated Press reporter Mary Clare Jalonick contributed to this report.

------

On the Net:

Senate Judiciary Committee: http://judiciary.senate.gov

Supreme Court: http://supremecourtus.gov

White House: http://www.whitehouse.gov



Copyright 2006 The Associated Press

January 31, 2006
Two Nominee Strategies. One Worked.
By DAVID D. KIRKPATRICK
WASHINGTON, Jan. 30 — The week before his Supreme Court confirmation hearings, Judge Samuel A. Alito Jr. e-mailed the text of his opening statement to the White House. It included very little about his legal thinking, dwelled at length on his family and opened with a tired and rambling joke about courtroom banter between a lawyer and a judge.

The response from the White House: "Perfect, don't change a word," according to an administration official who was granted anonymity because Judge Alito's preparation sessions were confidential.

As the last obstacles to confirmation faded away Monday, Democratic aides said their party had initially expected Judge Alito to live up to his reputation as "Scalito," suggesting a conservative firebrand in the mold of Justice Antonin Scalia. Failing to adjust to his meekness, Democratic aides admit they searched too hard for scandal in Judge Alito's past.

The White House, meanwhile, sought to take advantage of Judge Alito's low-key, almost shy demeanor to build sympathy for him. They say they succeeded beyond all expectations when Judge Alito's wife, Martha-Ann, walked out in tears from his confirmation hearings.

"Any time they are yelling, preaching, lecturing, and you are cool and calm and breathing deep, you are winning," the administration official said the White House team told Judge Alito. "What that means on television sets where the American people are watching this is, you look good and they look bad. It was the central operating premise."

Jim Manley, a spokesman for Senator Harry Reid of Nevada, the Democratic leader, agreed. "It was a classic rope-a-dope," Mr. Manley said, referring to the boxing tactic of leaning against the ropes to let an opponent exhaust himself punching.

Some Republican Senate staff members said they initially worried that Judge Alito might be too nervous to perform well under the pressure of the hearings. In one of his early meetings with a Senate Republican, Judge Alito's hands shook as he compulsively tied and untied the lace of one shoe. Both Republican and Democratic staff members in the Senate spoke on condition of anonymity for fear of retribution from their bosses.

Judge Alito's political naïveté led to at least one early miscue. Unaccustomed to attention from the news media, Judge Alito looked surprised when White House aides advised him to dispatch a relative to guard his 90-year-old mother from inquiring journalists, one administration official said.

The next day, The Associated Press quoted his mother saying, "Of course, he is against abortion," — the first chink in his supporters' portrait of him as an impartial jurist with no preconceived views. Judge Alito shyly acknowledged that he had not managed to get a relative to her door, the administration official said.

But Democrats, expecting a firebrand, came out swinging even before the nomination was announced. As President Bush prepared to announce a nominee three months ago, Mr. Reid vowed a vigorous fight if the president chose Judge Alito.

"I think it would create a lot of problems," he told CNN the night before Judge Alito was named.

But mindful of the need to enlist both moderate Republicans and conservative Democrats in any successful effort to block Judge Alito, liberal groups and Senate Democrats kept pushing for new points of attack other than the divisive subject of abortion rights, a strategy that at times detracted from the coherence of their message.

Their most indefatigable strategist was James Flug, a longtime friend of Senator Edward M. Kennedy of Massachusetts who, at 67, was decades older than most of the other legal counsels on the Judiciary Committee staff. Mr. Flug first worked for Mr. Kennedy 35 years ago when they led a liberal minority of senators to block the Supreme Court nominations of Judges G. Harrold Carswell and Clement F. Haynsworth Jr., in both cases by mobilizing a coalition of civil rights groups and unearthing embarrassing aspects of the nominees' records.

Among other things, several Democratic aides said, Mr. Flug drove the investigation into Judge Alito's failure to recuse himself, as he had pledged to do during his court of appeals confirmation hearing, from cases involving his mutual fund company, Vanguard. But Mr. Flug met with polite skepticism from many of his colleagues.

"You are going to ask more questions about that oversight where Alito made no money?" a staff member for another Democratic senator said he asked Mr. Flug.

"It became clear to us early on," the staff member added, "that the guy may be way too far right for our tastes, but we think the guy is a man of honor."

Mr. Flug also led the investigation into the background of Judge Alito's membership in Concerned Alumni of Princeton, a conservative group that had opposed the university's affirmative action policies and its admission of women. For weeks, he even tried to persuade the staff of Republican senators that the matter could be a serious concern, said Republican Judiciary Committee aides, until in December the Republicans sent a researcher to review the group's records and found no mention of Judge Alito.

Still, Mr. Kennedy made Concerned Alumni a major focus of his questioning at the confirmation hearings, even threatening to interrupt the proceedings unless the committee issued a subpoena for another set of the group's records. But the move backfired when the records turned out to be readily available and also did not include any reference to Judge Alito.

Laura Capps, a spokeswoman for Mr. Kennedy, said it was wrong to single out any one on his staff. "Democrats on the Judiciary Committee and Americans across the country — raised these alarming issues about Judge Alito's record and rightly so," Ms. Capps said. "And we deserved to get the answers that Judge Alito failed to provide."

In an interview over the weekend, Mr. Kennedy acknowledged that the Democrats had invested too much in the Vanguard and alumni group matters at the expense of making a more coherent case against Judge Alito on substantive issues..

"Clearly we could have done better," Mr. Kennedy said, singling out the judge's record on civil rights.

By the afternoon of the second day of Judge Alito's testimony, senior Democratic aides were already conceding privately that their hopes of stopping him were essentially lost.

Instead of a fearsome "Scalito" whom Democrats had initially expected, Judge Alito appeared timid and bland in the face of the Democratic questions, the aides said. "Instead of some brash, confrontational figure in the mold of Robert Bork, we got a quiet, studious guy you almost felt sorry for," Mr. Manley said.



Copyright 2006The New York Times