Alito Could Move Court Dramatically to the Right

Conservatives have welcomed the nomination of Judge Samuel Alito to replace retiring Justice Sandra Day O'Connor, seeing it as a rare opportunity to move the Supreme Court in a decidedly more conservative direction.

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The president's nomination of Federal Judge Samuel Alito to the US Supreme Court is drawing fire from Democrats and liberal groups. Conservatives are elated that the president's nominee to replace retiring Justice Sandra Day O'Connor is one of their own. They see this nomination as a rare opportunity to move the Supreme Court in a decidedly more conservative direction. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

Justice O'Connor, nominated to the Supreme Court by President Reagan, has been a centrist conservative and she's often cast the fifth and deciding vote on an otherwise evenly divided court. On abortion, affirmative action, states' rights and many other subjects, her vote is the one that's been determinative. Judge Alito's 15-year record as a federal appeals court judge is decidedly more conservative than O'Connor's. Thus, if the 55-year-old New Jersey native is confirmed, it is widely expected that he will move the court quite dramatically to the right, not just because he's a conservative, but because he's a conservative star who's widely admired for his intellectual brilliance.

Born in Trenton, New Jersey, the son of two school teachers, Alito attended Princeton and Yale Law School, was an editor of the Yale Law Journal, won all of the top prizes at Yale, went on to serve in the Reagan administration Justice Department, first in the solicitor general's office where he argued 12 cases before the US Supreme Court, then as a deputy assistant attorney general. After that, he moved on to become the US attorney in New Jersey, amassing a record as a tough prosecutor but suffering an embarrassing loss when 20 accused Mafia members were acquitted in a long trial on his watch.

In many ways, he's the antithesis of Harriet Miers, the president's nominee who was forced to withdraw last week after a conservative rebellion in the Republican Party. Miers had no judicial experience, no constitutional law experience and a record of speeches and positions that seemed to conservatives to be mushy at best, unprincipled at worst. Alito has a 15-year record as a federal appeals court judge, a record that's made him a conservative icon, a record that's already ginning up the money machines of the right and left for the long-awaited ideological battle royal over the future of the Supreme Court. Yesterday, conservatives were calling the nomination a grand slam and happily pronouncing an end to the internecine war that raged within the party over the Miers nomination. Gary Bauer, head of the conservative think tank American Values.

Mr. GARY BAUER (American Values): My heart jumped when I heard it, not because the president has done what the radical right wants, which is what some commentators have suggested, but because the president has fulfilled what he regularly promised during his campaigns, which was to give us nominees like Scalia and Thomas; that is, nominees more predictably conservative.

TOTENBERG: Liberals conversely were promising a battle to prevent Alito's confirmation. Ralph Neas, president of People For the American Way.

Mr. RALPH NEAS (President, People For the American Way): This is going to be the most important, most controversial Supreme Court confirmation battle since Robert Bork and Clarence Thomas.

TOTENBERG: In the Senate, most Republicans, like Utah's Orrin Hatch, enthusiastically endorsed the nomination.

Senator ORRIN HATCH (Republican, Utah): This man has every qualification in the world, and it would be an absolute catastrophic shame if he wasn't confirmed. But he will be.

TOTENBERG: But Democrats, while refraining from early outright opposition to Alito, sent some strong signals. Minority Leader Harry Reid wondered if Alito was, quote, "too radical for the American people." And Senator Edward Kennedy allowed as how Alito could push the court, quote, "dangerously to the right." Alito is indeed so conservative that he's been nicknamed in the press `Scalito', a play on the name of Justice Antonin Scalia, the Supreme Court's most outspoken conservative.

Professor CHARLES FRIED (Harvard Law School): The people who are talking Scalito should be spanked.

TOTENBERG: Harvard Law Professor Charles Fried served as the government's chief advocate in the Supreme Court for the Reagan administration and was Alito's boss back then.

Prof. FRIED: This man is not Nino Scalia. I'm a great admirer of Nino Scalia, but he's very different. He is a conservative person, but he's not a radical conservative the way Scalia is.

TOTENBERG: But liberals are disputing that characterization. They point to Alito judicial opinions--hostile to abortion, supportive of states' rights, and to his narrow interpretation of laws banning discrimination based on gender, race and disability. Indeed, on a key abortion decision, Alito was on the opposite side from Justice O'Connor and Justice Anthony Kennedy. In that ruling in 1991, Alito wrote an opinion that would have upheld Pennsylvania's law requiring that husbands be notified before their wives can have an abortion. The Supreme Court in ruling the law unconstitutional cited the problems that battered women would have if they had to tell their husbands about an impending abortion. Said the court, `The state may not give to a man the kind of dominion over his wife that parents exercise over their children.'

Kate Michelman, former president of NARAL Pro-Choice America, cites her own case as an example. When her husband abandoned her and the couple's three children, Michelman found herself on welfare, pregnant and destitute. But she said that when she went to the hospital for an abortion, she literally had to get out of bed to go find her husband before she could go forward with the abortion.

Ms. KATE MICHELMAN (NARAL Pro-Choice America): I think with this nomination, the president has set the course for the greatest threat to women's fundamental rights and liberties in more than three decades, if not in more than a century, frankly.

TOTENBERG: Others have focused on Alito's record in employment discrimination cases, citing a gender discrimination case in which his colleagues charged that Alito's position would have eviscerated the anti-discrimination law. Susan Ness is president of the Partnership for Women & Families. [POST-BROADCAST CORRECTION: DEBRA Ness is president of the Partnership for Woman & Families.]

Ms. DEBRA NESS (President, Partnership for Women & Families): Alito was the lone dissenter in a case with 13 judges in which he said that the level of proof an employee must have was something that almost no employee could ever produce before they could even get their case heard in court.

TOTENBERG: Democratic senators sought yesterday to turn the rhetorical tables on President Bush using his language about judges interpreting the law, not making it against Alito. In particular, Democrats pointed to one Alito decision that would have invalidated a federal law limiting the sale of machine guns, and another of his decisions that would have invalidated a federal law mandating unpaid medical leave for state employees as well as private sector employees. Senator Charles Schumer was less than subtle in equating some of these lower court decisions with the historic civil rights battles of the 1960s when Congress flexed its congressional power to pass the nation's civil rights statutes. And with Rosa Parks' body lying in the rotunda yesterday, Schumer alluded to those battles.

Senator CHARLES SCHUMER (Democrat, New York): 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.

TOTENBERG: Gary Bauer of American Values was quick to respond.

Mr. BAUER: I just find those kinds of statements really demagoguery.

TOTENBERG: That's just a taste of the bitter brew that is likely to become something of a steady diet in the coming weeks or longer. The president has said he wants Alito confirmed by Christmas, but all indications yesterday were that that's highly unlikely. Judiciary Committee Chairman Arlen Specter.

Senator ARLEN SPECTER (Judiciary Committee Chairman): I do not know that that is realistic; I do not know that that is unrealistic. What I do know is that we're gonna do it right and we're not necessarily gonna do it fast.

TOTENBERG: Nina Totenberg, NPR News, Washington.

MONTAGNE: You can read some of Judge Alito's key legal opinions in cases involving abortion, religious displays and freedom of speech at npr.org.

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