Alito gets mixed welcome

By HERB JACKSON, AP Washington Correspondent, Jan. 10, 2006

Supreme Court nominee Samuel Alito being sworn in during his confirmation hearing before the Senate Judiciary Committee on Capitol Hill, Monday.

WASHINGTON -- New Jersey Sen. Frank R. Lautenberg and former Gov. Christie Whitman praised local son Samuel Alito as they introduced him to the Senate Judiciary Committee on Monday, but Alito's confirmation to the U.S. Supreme Court could rely solely on support from outside his home state.

While Whitman set aside concerns about his position on abortion rights and endorsed Alito's confirmation, Lautenberg limited his compliments to praising "Alito's accomplishments in life [as] the embodiment of the American Dream."

That's a contrast to 15 years ago, when Lautenberg called Alito, of West Caldwell, "the kind of judge the public deserves" and endorsed his nomination to the nation's second-highest court. Lautenberg said that what changed is Alito's record of rulings on the 3rd Circuit Court of Appeals and the fact that there is no check on the decisions of the Supreme Court.

Lautenberg also faces heavy pressure from women's groups, environmentalists and organized labor -- the core of New Jersey's Democratic base -- to oppose Alito's promotion. So does Rep. Robert Menendez, the Hoboken Democrat who will replace Governor-elect Jon Corzine in the Senate next week and is running for a full term this year.

Lautenberg and Menendez both said they would wait to hear what Alito says during confirmation hearings before deciding how to vote, but some analysts say a vote against Alito is the smart move politically, especially for Menendez.

"There is an open issue whether or not Menendez will face a serious primary challenge for the Senate seat," said Howard Rubin, a political science professor at Kean University, noting that Reps. Frank Pallone and Rob Andrews are weighing their options.

"Not opposing the nomination will be one more factor tending to encourage that challenge, and would give the challenger greater access to outside funding," Rubin said.

Jeff Tittel, New Jersey director for the Sierra Club, which is angered by environmental rulings Alito has made, put it bluntly: "Menendez doesn't want to get different groups mad at him this year."

Women's groups such as the National Organization for Women and the Feminist Majority Foundation are lobbying heavily against Alito because they believe his confirmation would tip the balance of the Supreme Court toward overturning Roe v. Wade, the ruling that legalized abortion nationwide.

Feminist Majority brought college students from around the country to lobby their home-state senators against Alito, including 19-year-old Anna Kastner, a Swarthmore College sophomore from Montclair. In addition to abortion rights, Kastner told an aide to Lautenberg last week that she feared Alito's confirmation would threaten enforcement of family leave and sexual harassment laws.

"The next justice could be there for 30 years. That could have a huge effect on my life and career," she said.

To counter such views, the White House tapped Whitman, arguably the GOP's best-known pro-choice face, to stand in for Corzine and join Lautenberg in introducing Alito to the committee on Monday.

"I'm a pro-choice woman," Whitman said in an interview after the hearing. "I care deeply about that issue. But I can't let that issue be the deciding factor in something like the United States Supreme Court."

Rather, she told the committee, "one's agreement or disagreement on political questions is, after all, ultimately irrelevant" and what should really matter is a judge's ability to make fair decisions based on the law and the facts before him. Whitman said her experiences and review of Alito's record convinced her he had that ability.

Lautenberg and Menendez were not so sure.

"I'm standing on the center line," Lautenberg said. "I haven't decided which side to go to. I want to hear how my colleagues on the Judiciary Committee do their research."

Menendez wants to hear whether Alito thinks the Constitution provides a right to privacy, a linchpin to abortion decisions. Menendez also wants to hear Alito's opinion on the scope of presidential power in light of recent revelations of domestic surveillance authorized by President Bush.

"I certainly appreciate [that] Sam Alito has devoted his entire legal career to public service; that's to be admired," Menendez said. "But a Supreme Court nomination is about much more than being a Jersey boy. It's about deciding major cases that determine what the law of the land is."

Menendez's potential opponent in the fall Senate race, state Sen. Thomas H. Kean Jr., R-Union County, is also withholding an opinion on Alito until the hearings are over.

"He's obviously well-qualified, the [American Bar Association] has called him well-qualified and I'm proud of the fact he's from New Jersey," Kean said. "He has proven himself well enough that he deserves an up-or-down vote by the U.S. Senate. But like other people, I look forward to the hearings, listening to his answers, and seeing how the process unfolds."

Like Whitman, Kean said he supports abortion rights, but would not make that a litmus test for a Supreme Court nominee.

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THE ISSUES

At least two hot-button topics are sure to inspire questions during the hearings:

Abortion: In the 1980s, Samuel Alito wrote two documents demonstrating opposition to abortion. After his nomination, he promised to put aside his personal views if confirmed as a justice.

Judicial activism: Alito has said that federal judges must constantly guard against slipping into judicial activism to get the result they want on cases. Yet he said he saw no problem with federal judges creating strong remedies "when a constitutional or statutory violation has been proven."

RULINGS ON OTHER ISSUES

Supreme Court nominee Samuel Alito has an extensive paper trail because of his lengthy career as a judge, a U.S. attorney and government lawyer.

Since Alito was nominated on Oct. 31, his opinions on rulings and cases have been analyzed by lawmakers, journalists and special-interest groups for clues to how he might rule on the Supreme Court. Although he is a conservative jurist in the main, his opinions have not always been predictably to the right. Several documents offer insight into Alito's views on the pressing topics of the day:

Criminal procedure-Fourth Amendment rights: As a lawyer in the Solicitor General's Office during the 1980s, Alito argued that a police officer was justified in shooting an unarmed 15-year-old trying to avoid arrest after a burglary. In the memo, written when the administration was weighing whether to get involved in a case that was then pending before the Supreme Court, Alito wrote that shooting was reasonable within the definition of the Fourth Amendment, which protects against unreasonable searches and seizures. The young lawyer concluded that a "fleeing suspect in effect states to the police: 'Kill me or let me escape the legal process, at least for now.'" He added, "If every suspect could evade arrest by putting the state to this choice, societal order would quickly break down."

Death penalty: In an appeals court case that was overturned by the Supreme Court last year, Alito upheld a decision handed down in a 17-year-old Pennsylvania death-penalty case. The defendant, convicted of robbing and killing a tavern owner, later argued that his lawyers failed to consider important court material. A lower court sided with the defendant, but that decision was overturned on appeal. In a 2-1 opinion written for the majority, Alito said the defendant's lawyer had done enough to represent him.

Religious freedoms: As an appeals court judge, Alito appears to be a staunch defender of religious freedoms. In 1999, he wrote the majority opinion allowing Muslim police officers in Newark to keep their beards, broadening an exemption the department had allowed only on medical grounds. That same year, he joined the majority in ruling that a City Hall holiday display in Jersey City containing a crèche, a menorah, a banner celebrating diversity and secular symbols of the season did not offend the constitutional separation between church and state.

Free speech: As an appeals court judge in 2004, Alito helped to decide that a Pennsylvania law banning paid advertisements for alcohol in college newspapers was unconstitutional. In the ruling, he said that the state faces a heavy burden anytime it tries to restrict speech but had offered only "conjecture" to support its contention that the ad ban would slacken the demand for alcohol by underage college students.

Harassment: In 1999, Alito wrote opinions that outlawed a school anti-harassment policy barring demeaning comments about race, religion or gender as overly broad. He also 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.