[Mb-civic] Alito, In and Out of the Mainstream - Washington Post

[William Swiggard]

Alito, In and Out of the Mainstream
Nominee's Record Defies Stereotyping

By Amy Goldstein and Sarah Cohen
Washington Post Staff Writers
Sunday, January 1, 2006; A01

During 15 years as an appeals court judge, Supreme Court nominee Samuel 
A. Alito Jr. has been highly sympathetic to prosecutors, skeptical of 
immigrants trying to avoid deportation, and supportive of a lower wall 
between church and state, according to an analysis of his record by The 
Washington Post.

Alito has taken a harder line on criminal and immigration cases than 
most federal appellate judges nationwide, including those who, like him, 
were selected by Republican presidents, the analysis found.

In civil rights cases, Alito has sided against three of every four 
people who claimed to have been victims of discrimination, based on the 
lawsuits in the analysis. Such a record is typical of Republican 
appointees on federal appeals courts in discrimination cases, the area 
of the law in which national studies show GOP-appointed judges differ 
most from their Democratic-appointed counterparts.

Still, in a few areas of the law, Alito's record resembles that of the 
average U.S. appellate judge. His decisions on First Amendment cases 
have been mixed. And when workers have sued for pay or benefits, he has 
agreed with them about half the time.

The analysis, based on a database developed through a review of more 
than 200 cases Alito helped to decide on the U.S. Court of Appeals for 
the 3rd Circuit, provides a more nuanced glimpse of his ideology than 
the portrayal by his supporters and critics. With Senate confirmation 
hearings scheduled to start next week, Bush administration officials and 
conservative allies working to win Alito's approval say he fits within 
the judicial mainstream; some Democrats and liberal advocacy groups 
trying to defeat his nomination say he is an ideologue.

Neither characterization is completely accurate.

Instead, the analysis, along with interviews of scholars who study the 
courts, shows that Alito takes consistently restrictive stances on some 
social issues and criminals' rights but does not differ substantially 
from the typical judge in other areas.

Overall, the analysis shows, Alito does not disagree with majority 
opinions more frequently than most federal appeals judges do in similar 
cases. Yet a closer look finds that he dissents most often in areas 
where his views are least typical of the average judge: cases in which 
he has favored religion and largely sided against immigrants and one 
group of convicted criminals: prisoners facing the death penalty.

"Here is where Alito really takes his stand," said Kenneth L. Manning, a 
political scientist at the University of Massachusetts at Dartmouth who 
has studied the voting behavior of other appellate judges.

Because Supreme Court justices are free to disregard precedent, Alito's 
decisions are an imperfect barometer of how he might rule if he succeeds 
Sandra Day O'Connor, a pivotal member of the high court. Still, scholars 
said that his opinions since joining the 3rd Circuit in 1990 yield 
important clues, such as which areas of law he is passionate about, 
whether he strives for consensus and how his views align with Supreme 
Court decisions.

To examine his record, The Post looked at how Alito voted on all 221 
cases he has helped to decide in which the 3rd Circuit -- which handles 
appeals from Pennsylvania, New Jersey, Delaware and the Virgin Islands 
-- issued a divided ruling. Those cases provide a revealing window to a 
judge's ideology, judicial scholars say, because they involve legal 
issues that are unclear. In that way, they also are most like the cases 
the Supreme Court hears, said Donald R. Songer, a political scientist at 
the University of South Carolina who studies appellate courts.

The idea of trying to gauge a judge's ideology from his voting patterns 
on different types of cases is unpopular among law professors who prefer 
to study legal reasoning case by case. But the method used by The Post 
is well accepted among political scientists -- many of whom clump 
together votes on types of cases to determine whether a judge is liberal 
or conservative, a step The Post did not take.

The analysis included 34 majority opinions and 55 dissenting ones that 
Alito wrote, plus 132 in which he voted but did not put his views in 
writing.

Overall, the opinions Alito wrote are largely devoid of impassioned 
rhetoric or broad philosophical assertions. He grounds his views in 
close readings of legal precedents, statutes and government regulations. 
Of the cases The Post examined, Alito upheld the rulings of a lower 
court about half the time, which is typical of appeals judges nationally.

Routinely, he defers to government officials and others in positions of 
authority. He sometimes chastises his fellow judges for what he regards 
as overstepping their authority by imposing their own judgments, rather 
than merely assessing the legality of actions by prison guards, defense 
lawyers and immigration officials being challenged -- actions he often 
upholds.

His written opinions often are "very thoughtful, well constructed and 
well argued," said Martin H. Redish, a constitutional scholar at 
Northwestern University School of Law in Chicago who reviewed several 
cases in the Post analysis. At the same time, he said, Alito is "clearly 
tough-minded . . . having very little sympathy for those asserting 
rights against the government."

As Alito's confirmation hearings approach, the debate over his 
nomination has escalated to a political brawl. At the core of the 
partisan fight is a pair of memos he wrote two decades ago, when he was 
a Justice Department lawyer in the Reagan administration. In them he 
made clear that he opposed Roe v. Wade , the 1973 Supreme Court ruling 
that legalized abortion nationwide.

There were two abortion cases in the analysis. Alito voted to restrict 
abortion rights in one -- the well-known Planned Parenthood of 
Southeastern Pennsylvania v. Casey , in which the Supreme Court later 
disagreed with him -- and voted to protect such rights in the other.

Alito's place in the nation's decades-old abortion wars, the analysis 
shows, is not what most defines him as a judge.

The Prosecutors' View

In the summer of 1991, Kourtney Kauffman was released against his 
doctors' advice after a five-day stay at a psychiatric center in 
Harrisburg, Pa. Two days before he was hospitalized, five guns were 
stolen from a nearby house. Five days after he got out, Kauffman was 
arrested while trying to sell four of the weapons to a firearms dealer.

On his lawyer's advice, he pleaded guilty to illegally possessing the 
guns and received a 15-year sentence. A few years later, Kauffman sought 
to have his conviction overturned, arguing that his lawyer had not 
discussed the possibility of an insanity defense, even though a 
psychiatrist who had examined him the day he was arrested concluded he 
was "undoubtedly psychotic at the time."

A U.S. district judge turned Kauffman down, and he appealed. The two 3rd 
Circuit judges with whom Alito heard the case -- like him, appointed by 
President George H.W. Bush -- ordered a new trial for Kauffman. Although 
a court must be "highly deferential" to the decisions of a lawyer 
representing a criminal defendant, the majority ruled, Kauffman's 
counsel was inadequate because he had not investigated his client's 
history of mental illness or considered an insanity defense.

Alito disagreed. Because the lawyer had represented Kauffman in the 
past, Alito wrote in his dissent, he knew his client well enough to make 
a "tactical decision" that a guilty plea was the best course. The court 
majority, he wrote, "fails to heed that important admonition" that 
judges should be reluctant to second-guess lawyers' conduct.

U.S. v. Kauffman is typical of Alito's perspective on criminal cases. Of 
33 such cases in the analysis, he sided with criminal defendants only 
three times, aligning with prosecutors more often than the average 
GOP-appointed judge in divided cases. His high rate of favoring the 
prosecution is nearly identical to that of the Supreme Court's new chief 
justice, John G. Roberts Jr., according to the University of 
Massachusetts's Manning, who performed a similar analysis of Roberts's 
record from his two years on a different federal appeals court.

As in the Kauffman case, Alito voted in two-thirds of the criminal cases 
to uphold the rulings of a lower-court judge. His votes in one small 
group of those criminal cases -- four appeals from inmates facing death 
sentences -- were even more consistent. Every time, he voted against 
sparing the prisoner from execution. Nationally, federal appeals judges 
in disputed cases vote to give relief to prisoners sentenced to death 
about a third of the time.

Such a record, the University of South Carolina's Songer said, implies 
that Alito would behave differently from Justice O'Connor, who has been 
willing in recent years to restrict the use of the death penalty.

Voting With GOP Judges

If Alito's treatment of criminal cases is unusual, his record is more 
ordinary in a few other areas. This is particularly true in lawsuits by 
employees who claim to have been denied wages, benefits or union rights. 
Of 19 such cases in the analysis, Alito voted in favor of workers nearly 
half the time -- about the same as judges nationwide and more often than 
the average Republican-appointed judge.

In 1991, his was the sole vote siding with 228 Philippine seamen working 
on Kuwaiti oil tankers in the Persian Gulf who alleged that they 
deserved to be paid minimum wage under the Fair Labor Standards Act. It 
was around the time of the Persian Gulf War, and their ships had 
temporarily been reflagged under the U.S. flag because it was dangerous 
in that region for vessels from neutral countries.

The court majority ruled the sailors did not deserve the pay because 
they were outside U.S. waters and their ships were only temporarily 
reflagged. Alito countered that the legislative history of the labor law 
"makes clear that Congress intended for the minimum wage requirement to 
apply to all seamen on all American vessels."

Alito has been less sympathetic to employees who claim to have been 
discriminated against on the basis of race, sex, age or disability, 
siding squarely with them in just three of 15 such cases in the 
analysis. In those and other discrimination cases, his voting pattern is 
comparable to the typical Republican-appointed judge.

He also is similar to other Republican appointees in overall deference 
to the government. For example, he agreed with the government position 
in all but one of seven cases in which prisoners alleged violations of 
their rights.

The only kind of case involving the government in which Alito ruled 
against its interest most of the time was when companies challenged 
federal regulations.

His treatment of immigration issues -- siding one time in eight squarely 
with immigrants who were trying to win asylum or block their deportation 
-- makes Alito less sympathetic to immigrants than most Republican 
appointees. At a time when other circuit judges nationwide have 
criticized as too harsh the reasoning and conduct of the Board of 
Immigration Appeals, Alito has displayed "almost total deference" to the 
board, said Owen M. Fiss, a Yale Law School professor who, with 21 Yale 
faculty and students, has analyzed the more than 400 published opinions 
Alito has written.

In the 1994 Tipu v. Immigration and Naturalization Service , two judges 
with whom he heard the case -- both GOP appointees -- threw out a 
deportation order against a Pakistani immigrant convicted on a drug 
conspiracy charge. The top administrative board that considers 
immigrants' appeals, they reasoned, had made mistakes, ignoring that 
Mohammed Zafar Tipu had played a minor role in the conspiracy, received 
a high school degree while serving a light prison sentence and cared for 
an ailing brother.

Alito wanted to uphold the deportation. "The majority has wandered well 
beyond the limited scope of appellate review that we are permitted," he 
wrote in his dissent. "Whatever else one may think about [the 
immigration board's] decision, it was not arbitrary, irrational or 
contrary to law."

Last year, the 3rd Circuit blocked the deportation of a Korean couple, 
longtime residents of the United States who were convicted of a tax 
violation, concluding that the crime was not an "aggravated felony" that 
required them to be removed. Alito, in a dissent, gave a lengthy 
interpretation of what he believed Congress had in mind when it wrote a 
section of federal immigration law -- and the majority chided him, 
writing that a judge should reach decisions "unaided by speculation."

Larger Role for Religion

Alito has agreed consistently with people who are trying to expand the 
role of religion in public life, the analysis shows.

Three cases in the analysis deal with the boundaries between church and 
state, and Alito's decisions parallel about a dozen other -- unanimous 
-- cases he has heard that were not examined by The Post, said Ira C. 
Lupu, a constitutional scholar at George Washington University Law School.

Alito's views differ from those of most appellate judges and all the 
current members of the Supreme Court, Lupu said, because "he is on the 
side of whoever is trying to include or advance a religious message." 
Alito has taken a narrow view of the First Amendment's establishment 
clause, which forbids the government to sponsor any religion, and an 
expansive view of its free-exercise clause, which protects people's 
rights to worship as they want.

In an establishment-clause case in the analysis, American Civil 
Liberties Union of New Jersey ex rel. Lander v. Schundler , Alito wrote 
a 1999 majority opinion upholding the constitutionality of a holiday 
display in front of City Hall in Jersey City. A lower court had banned 
the display a few years earlier, when it featured a Hanukkah menorah and 
a Christmas tree. Two weeks later, the city put it back up with changes, 
adding a large plastic Santa Claus, Frosty the Snowman, a red sled and 
Kwanzaa symbols.

Alito said the secular additions "demystified" the religious symbols and 
made the display legal. In a dissent, Judge Richard Lowell Nygaard, a 
Reagan appointee, wrote that the "addition of a few small token secular 
objects is not enough to constitutionally legitimate the modified display."

In a free-exercise case, Alito sided with a boy named Zachary Hood in 
Medford, N.J., who, as a kindergartner, made a poster on which he had 
drawn a picture of Jesus as an example of something he was thankful for. 
In first grade, when allowed to bring a book to read to class, he 
brought "The Beginner's Bible: Timeless Children's Stories."

The court's majority ruled in favor of the school system and teachers, 
who removed the boy's poster from a wall and forbade him to read the 
Bible stories to his class. Alito dissented, writing that 
"discriminatory treatment of the poster because of its 'religious theme' 
would violate the First Amendment." He reasoned that "public school 
students have the right to express religious views in class discussion 
or in assigned work, provided that their expression falls within the 
scope of the discussion or the assignment."

Alito has greater sympathy for First Amendment rights when it comes to 
religion than other free-speech issues. Of six First Amendment cases in 
the analysis that did not involve religion, he voted to uphold such 
rights once.

Last February, for instance, he helped to decide a class-action lawsuit 
by inmates in a unit of a Pittsburgh prison set aside for especially 
violent prisoners. Inmates in the unit were not allowed to have 
newspapers, magazines or photographs -- and they sued, alleging the rule 
violated their free-speech rights.

The court's majority found the ban unconstitutional. Alito disagreed. 
Citing a precedent that "instructs courts to extend considerable 
deference to judgments of correctional officials," he wrote that the 
prison officials were reasonable in believing the restrictions might 
deter other inmates from misbehaving -- and that the segregated 
prisoners did not face absolute restrictions, because they could get 
around the ban by improving their behavior enough to get out of the 
unit. In November, the Supreme Court decided that it will hear the case.

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/31/AR2005123100328.html
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