Samuel Alito Supreme Court nomination

President George W. Bush announces that Judge Samuel A. Alito, Jr. is his Supreme Court nomination during a press conference on October 31, 2005

On October 31, 2005, Samuel Anthony Alito, Jr. (born April 1, 1950) was nominated by President George W. Bush for Associate Justice of the Supreme Court of the United States to replace the retiring Sandra Day O'Connor. Alito has been a judge on the United States Court of Appeals for the Third Circuit since 1990 when he was appointed by President George H. W. Bush. Alito was initially interviewed for the job June 24, 2001, by then-White House Counsel Alberto Gonzales. He was again interviewed May 5, 2005 by Vice President Dick Cheney, Attorney General Gonzales, White House Chief of Staff Andy Card, Karl Rove, White House Counsel Harriet Miers and the Vice President's chief of staff, I. Lewis Libby. President Bush interviewed him in person on July 14, 2005. [1]

On November 3, 2005, Senator Arlen Specter, chairman of the Senate Judiciary Committee outlined the prospective time line for the Alito hearing and voting.

Confirmation Hearing

On January 9 the Senate Judiciary Committee began its confirmation hearings with opening statements. The hearings were expected to last five days, including a committee vote on January 17, and the full Senate's vote on Alito's nomination on January 20. The date of the confirmation vote was later than President Bush's request for a confirmation vote by Christmas. The first day of Senate questioning began January 10, 2006.

Day 2 (Jan. 10)

Committee Chairman Senator Arlen Specter (R-PA) addressed the unitary executive theory that gives the President free rein to interpret laws his way. He asked Alito about his understanding of the Truman Steel Seizure case -- Youngstown Sheet & Tube Co. v. Sawyer. Specter then asked about the (newly mentioned by Chief Justice John Roberts of the United States Supreme Court) theory of super precedent. In a humorous motion Arlen Specter said super-duper precedent as regards the Casey case.

Alito was questioned about his membership in the Concerned Alumni of Princeton, described by media reports as a racist, sexist organization that sought to restrict the admission of women and minorities to the private institution. When questioned by Senator Patrick Leahy (D-VT) about his involvement, Alito claimed to have no memory of being a member of the group. However, in his 1985 ‘Personal Qualifications Statement’ when applying to be an Assistant Attorney General, he listed his membership in CAP as a qualification. Leahy stated "I can't believe at age 35 when applying for a job" that he couldn't know. It was subsequently pointed out by several Senators that several alumni of Princeton, Bill Frist (a Republican Senator) and Bill Bradley (a former Democratic Senator) had publicly deplored the group's activity. Senator Orrin Hatch tried to ameliorate the damage by pointing out that Alito was not an officer of CAP. He also asked Alito "Are you against the admission of women or minorities?" whereupon Alito denied it.

Alito did not recuse himself from a case involving the low-cost mutual-fund company The Vanguard Group. Senator Hatch addressed this issue. Hatch quoted the "Standing Committee" as saying that notwithstanding the Vanguard nonrecusal, "Judge Alito ... is of the highest ethical standing." Alito then was allowed to explain the facts of the Vanguard case. Alito asserted that he abided by Section 455 of Title 28. Sen. Kennedy reminded Alito that he had testified that he would recuse himself during his 3rd Circuit Court confirmation. Alito said that it was a pro se case (meaning it was not argued by a lawyer). He claimed that the court handles pro se cases differently from cases argued by lawyers. He said that the recusal forms are different. The Vanguard case, he said, did not come to him with "clearance sheets," just the sides briefs. "When this case came to me, I didn't focus on recusal," he said. On appeal, a recusal motion came to him and he then claimed to have "gone to the Code" and did not feel he needed to recuse. He claimed that he decided to recuse himself and requested that his decision on the case be vacated. He said that his procedure for pro se cases now uses red sheets for recusals, to avoid missing them.

Seeking to allay liberals' fears of creeping federalism that could hamstring Congress as in United States v. Lopez, Senator Jeff Sessions asked Alito about the required interstate nexus before a federal statute can be applied. Alito explained that in his experience as United States Attorney, federal gun crime statutes can satisfy the required jurisdictional element by saying that the gun must have been transported in interstate commerce. Senator Sessions tried to do damage control over the controversial Garrett v. Alabama case that the conservative 5-4 majority used to grant more states' rights via their federalism jurisprudence holding that Congress may not grant a state citizen the right to sue his or her own state for money damages. Senator Sessions asked about Alito's views on the reading of foreign legal precedents, allowing Alito to express his support for Antonin Scalia's well-known opposition to the consideration of foreign law in crafting opinions by U.S. judges. Alito said that he did not find using foreign laws useful. This is contrary to Justice Stephen Breyer's well-known exhortation to read foreign law for any help it may provide in identifying similar situations.

Sessions then allowed Alito to give his opinion on the case involving the strip search of a ten-year-old girl (Doe v. Groody) that opponents have highlighted as showing Alito's extreme deference to authority (in this case the right of the police to interpret a search warrant for a suspected drug dealer's premises as authorizing them to strip-search the man's wife and daughter).

However Sessions highlighted that Alito ruled in favor of abortion rights in at least one case.

Senator Lindsey Graham asked Alito questions about enemy combatants, and the Hamdi and Padilla cases. Graham asked whether there have ever been any cases in which a foreign non-citizen soldier/fighter brought suit in a U.S. court. Alito was asked whether any enemy prisoner of war ever brought a federal habeas corpus case. There were two cases, the Six Saboteurs, in re Quirin where even U.S. citizens are not entitled to federal courts but allowed only military tribunals. Then the second case involving six Germans caught assisting Japanese Eisentrager who were sent to Germany; they brought an unsuccessful habeas corpus case. They were held "not [in] U.S. territory". Graham said, "We don't let people trying to kill us sue us." Alito said that "[he] wouldn't put it" so strongly. Alito said that we also need to take note of Ex Parte Milligan from the Civil War. Graham disagreed. Alito agreed with Graham that the miiltary has expertise on who is and who is not a prisoner of war. However, the treatment of detainees, according to Graham, is a different matter. Graham asked whether Alito is proud of the fact the the USA is a signatory to the Geneva Convention. Graham asked whether if someone were caught whether here or abroad a la Hamdan the Geneva Convention would give the prisoner a private right of action. Graham pointed out that where he differed from some others is on the question of torture. Graham asked whether any President can disregard the federal statute against torture -- making it a crime -- even in war. Alito said "the President is not above the law."

On the question of what a Strict constructionist is, Alito agreed with Graham that it was a judge who did not make it up. Graham asked whether a President who interprets the Congressional authorization for the Use of Force as giving him the right to wire-tap without getting a FISA warrant is ... ?. Graham said that his point a la Justice Jackson (in the Youngstown Sheet & Tube v. Sawyer case) was not aimed at Alito but "at the audience". Graham is worried about the "chilling effect" of a President who goes too far, leaving Congress gun-shy about granting the executive branch the "Use of Force" (i.e. declining to pass a War Resolution). Graham hinted at the 60-vote requirement for breaking a so-called filibuster (actually invoking cloture)... super-duper precedent. Alito did not take the bait over whether any statute or rule could be made to overrule the simple majority that the Constitution requires for confirming a Supreme Court Justice.

Senator Charles Schumer (D-NY) asked Alito whether statements in his 1985 ‘Personal Qualifications Statement’ when applying to be an Assistant Attorney General under Pres. Ronald Reagan still represent his views at the time and also whether they represent his views today. Alito gave an evasive answer about stare decisis. Schumer jabbed back, claiming that Alito had stated forthrightly that "the Constitution does not protect a right to an abortion". Schumer said that "it's important that you (Alito) give an answer." Alito replied that if a case involving abortion rights came up, he would use a judicial process. Schumer rejoined ... "I'm not asking about a process;.... Do you still believe it?" Schumer remarked "I'm not asking you about case law". Schumer then asked whether the "Constitution protects the right of free speech" whereupon Alito agreed. Schumer then compared that question with the question of whether the Constitution protects the right to an abortion. Schumer then made an elliptical comment about hypothetical in-laws. Schumer said that he didn't expect Alito to answer the abortion question. Schumer mentioned the National League of Cities and how it was overruled by Garcia and how Lawrence v. Texas overruled Bowers v. Hartwick and Brown v. Board of Education. So Alito agreed that stare decisis is not inviolate. Schumer made allusions to Justice Clarence Thomas's views on stare decisis, which he claimed included a call for Buckley v. Valeo, Calder v. Bull and a long string of cases establishing Supreme Court precedent to be overturned.

Senator John Cornyn (R-TX) characterized Schumer's questioning as of the "When did you stop beating your wife?" type and remarked that if Schumer can mention in-laws, he can mention a wife. Cornyn said that the word "abortion" is not in the Constitution; Alito said "The word that appears in the Constitution is liberty." He further claimed that "There is no express reference to privacy in the Constitution. But it is protected by the Fourth Amendment and in certain circumstances by the First Amendment and in certain circumstances by the Fifth and the 14th Amendments."

Day 3 (Jan. 11)

Senator Richard Durbin (D-IL) inquired into inconsistency between Alito's unequivocal support for the unspecified right to desegregated schools in Brown v. Board of Education from the equal protection clause but his refusal to do the same for the Griswold case from the liberty clause. Durbin also questioned Alito further regarding his membership in Concerned Alumni for Princeton, and Alito again denied remembering any details about his membership in the organization.

Senator Sam Brownback (R-KS) countered with a recommendation from a former law clerk member of the ACLU. On checks and balances, then Brownback asked Alito about the power of Congress to limit the federal courts jurisdiction in the Exceptions Clause as in Ex Parte McCardle.

Senator Herb Kohl (D-WI) cited a Washington Post analysis of 221 cases where there was a 2-1 split of patterns in decison in Civil Rights cases, that Alito sided against 3 out of 4 plaintiffs who cliamed discrimination much higher than similar judges. Alito said that the sample was skewed because most of the cases were from District Court where the plaintiff lost.

Senator Specter then mentioned how Senator Kennedy didn't speak to him before he asked for the "Russia" papers. I don't know what Specter is tyalking about. Apparently there are some more documents that the Senate Committe wants for consideration in the hearing.

Senator Patrick Leahy (D-VT) then mentioned that President Bush invoked the Unitary Executive theory 103 times in signing ceremonies.

Senator Mike DeWine (R-OH) then mentioned his concern on the Americans with Disabilities Act that the Olmstedt? case in 1999, where the Supreme Court held that the state must serve disabled people in non-segregated ways; they must be mainstreamed. DeWine asked Alito if he would reconsider his decison in the earlier Helen L case in the motion for rehearing.

DeWine asked about antitrust where many hospitals buy using GPOs (group purchasing organizations) to get discounts. This results in smaller companies having a hard time getting into the business. He asked about the famous bundling case 3M v. LePage case in which Alito dissented (the majority found against 3M).

DeWine then asked the great question of Constitutional Law, the fact that many clauses are written in the general terms of Unreasonable search and Seizure, Cruel and Unusual... how would he as a Justice know whether he was following the Constitution or whether he was making policy. Alito mentioned stare decisis and used the Terry stop search and adminstrative search and the border search as examples of how to follow what was done before.

DeWine then went on to a First Amendment question. He mentioned the fact pattern of theGilleo case where homeowners were restricted on the size and type of lawn signs that they could dsiplay. He asked Alito what factors he would use to decide how to restrict speech in the public square. Alito said that the Forum Doctrine has been developed to address speech in public. But would Alito reverse Greer v. Spock or Adderly v. Florida?

DeWine asked about Commercial Speech in Pitt News where Alito struck down a local speech restricting rule. Alito said that sufficent tailoring was used as the standard for invaliading the ordinace that applied only to the Pitt News and not to other papers.

Nomination issues

Conflicts of interest

On a questionnaire for the Senate Judiciary Committee in his court-of-appeals confirmation process in 1990, Alito said he would avoid a conflict of interest by not voting on cases involving First Federal Savings & Loan of Rochester, NY, and two investment firms, Smith Barney and Vanguard Group, because he held accounts with them. However, in 2002, Alito upheld a lower court's dismissal of a lawsuit filed against multiple investment company defendants, including Vanguard Group. When notified of the situation, Alito denied doing anything improper but recused himself from further involvement in the case.

On November 10, Judge Alito wrote Senator Specter, the chairman of the Senate Judiciary Committee, explaining his participation in the case.[2] He said that when he had originally listed Vanguard and Smith Barney in 1990, "my intention was to state that I would never knowingly hear a case where a conflict of interest existed. ... As my service continued, I realized that I had been unduly restrictive."

Filibuster

Some Senators who oppose the Alito nomination are considering using a filibuster option in the attempt to block the nomination. Senator Barbara Boxer (D-CA) has said "The filibuster's on the table." While other Senators have warned not to rush to a decision, Dick Durbin (D-IL) has said "I don't think we should assume that's going to happen at all." He added "Ordinarily it takes six to eight weeks to evaluate a Supreme Court nominee. We shouldn't rush to judgment."

Nuclear Option

In response to the consideration of the filibuster option, some Republicans have begun to discuss the so called "nuclear option" abolishing judicial filibusters. Senate Majority Leader Bill Frist (R-TN) has said "If a filibuster comes back, I'm not going to hesitate."

A key bipartisan group of senators known as the "Gang of 14" held meetings on Alito. Members of this group may play a potentially crucial role in Senate confirmation. Under existing Senate rules, it takes at least 60 votes to end a filibuster and force a final vote. It is likely either party will need the majority of this group despite the 55-member Republican majority. Senator Mike DeWine (R-OH), a member of the Gang, has said "If someone would filibuster ... I would be prepared to vote to change the rules."

American Bar Association

Alito was rated by the American Bar Association as “Well Qualified.” In a letter to the Judiciary Committee, chair of the ABA Standing Committee on Federal Judiciary Stephen Tober stated:

We accept [Alito's] explanation and do not believe these matters reflect adversely on him... On the basis of our interviews with Judge Alito and with well over 300 judges, lawyers, and members of the legal community nationwide, all of whom know Judge Alito professionally, the Standing Committee concluded that Judge Alito is an individual of excellent integrity.

Stances on controversial issues

Abortion

A dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), arguing that a Pennsylvania law that required women seeking abortions to inform their husbands should have been upheld. As Judge Alito reasoned:

[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems — such as economic constraints, future plans, or the husbands' previously expressed opposition — that may be obviated by discussion prior to the abortion." He added some exceptions: "These exceptions apply if a woman certifies that she has not notified her husband because she believes [FN4] that (1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her."

Rehnquist's dissent [3] from the Supreme Court's plurality decision striking down the spousal notification provision of the law quoted Judge Alito's dissent and expressed support for his reasoning.

A concurring opinion in Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127 (3rd Cir. 2000), [4] in which Judge Alito recognized that a New Jersey law banning intact dilation and extraction (commonly called "partial-birth abortion") was unconstititional in light of the then recent Supreme Court case of Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), which struck down a nearly identical law in Nebraska.
In 1995, voted to strike down an abortion restriction in a Pennsylvania law that required women seeking to use Medicaid funds to abort a child resulting from rape or incest to report the incident to law enforcement officials and identify the offender.
Ruled the Constitution does not afford protection to the unborn in a 1997 challenge to a New Jersey law that prevents parents from suing for damages on behalf of the wrongful death of a fetus.
Stated that "the Constitution does not protect a right to an abortion" in a 1985 document obtained by The Washington Times.

Separation of Church and State

In ACLU-NJ v. Township of Wall (2001), [5] Alito dismissed for lack of standing an appeal of a lower court ruling that Wall, New Jersey's 1999 holiday display, which included a nativity scene, a donated menorah, a large evergreen tree and candy cane banners, did not violate the Establishment Clause of the First Amendment. Alito ruled that the plaintiffs had not offered evidence they "suffered the type of injury that would confer standing." The ruling does not "prevent plaintiffs from attempting to challenge any future display that plaintiffs believe violates constitutional principles."

Discrimination

Race-based

A majority opinion in Williams v. Price, 343 F.3d 223 (3d Cir. 2003), [25] granting a writ of habeas corpus to a black state prisoner after state courts had refused to consider the testimony of a witness who stated that a juror had uttered derogatory remarks about blacks during an encounter in the courthouse after the conclusion of the trial.
Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority opinion warned that the "... statute must not be applied in a manner that ignores the sad reality that racial animus can all too easily warp an individual's perspective to the point that he or she never considers the member of a protected class the "best" candidate regardless of that person's credentials", and that Alito's dissenting opinion "would immunize an employer from the reach of Title VII if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias.” Alito, on the other hand, argued that the majority was too liberal in decreasing the burden required of the plaintiff to obtain a summary judgement. He added that "we are allowing disgruntled employees to impose the costs of trial on employers". Bray v. Marriott Hotels, 1997.

Disability-based

Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito’s dissent was so restrictive that “few if any…cases would survive summary judgment.” Summary judgment allows a case to be dismissed before it goes to trial. Nathanson v.Medical College of Pennsylvania, 1991.

Sexual Orientation-based

A majority opinion in Saxe v. State, 240 F.3d 200 (3d. Cir. 2001), that declared unconstitutional a public school district policy that prohibited harassment against students because of their sexual orientation or other characteristics. Alito reasoned that the policy was unconstitutional because it could cover what he called "simple acts of teasing and name-calling."

At Princeton, Alito led a student conference which, among other things, supported curbs on domestic intelligence gathering and called for the legalization of sodomy. He stated that "no private sexual act between consenting adults should be forbidden," and urged for an end to discrimination against homosexuals in hiring by employers. [6]

Family and Medical Leave Act

The 2003 Supreme Court ruling upholding FMLA Nevada v. Hibbs, 2003, essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law. Chittister v. Department of Community and Economic Development, 2000.

Unauthorized Searches

In Doe v. Groody, Alito dissented, arguing that police officers had not violated constitutional rights when they strip-searched a mother and her ten-year-old daughter while carrying out a search warrant. Doe v. Groody, 2004.

Immigration

In two cases involving the deportation of immigrants, the majority twice alleged that Alito had disregarded settled law. In Dia v. Ashcroft, the majority opinion states that Alito’s dissent “guts the statutory standard” and “ignores our precedent.” In Ki Se Lee v. Ashcroft, the majority stated Alito’s opinion contradicted “well-recognized rules of statutory construction.” Dia v. Ashcroft, 2003; Ki Se Lee v. Ashcroft (PDF), 2004.

First Amendment

A majority opinion in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) [7], holding that the public school district's anti-harassment policy, which prohibited harassment based on sexual orientation among other criteria, was unconstitutionally overbroad and therefore violated First Amendment guarantees of free speech. Alito wrote: No court or legislature has ever suggested that unwelcome speech directed at another's 'values' may be prohibited under the rubric of anti-discrimination.
A dissenting opinion in Banks v. Beard, 399 F.3d 134 (3d Cir. 2005), arguing that the prison policy prohibiting inmates of a segregated unit from accessing news media or family photographs was not a violation of the First Amendment. Alito reasoned:[8]

[T]here is a "rational" relationship between that restriction and the legitimate penological objective of deterring misconduct. It is "rational" for corrections officials to think that inmates who are not in Level 2 will be deterred from engaging in serious misconduct because they do not want to be transferred to that unit and thus to be subjected to the restrictions that accompany that assignment. It is also "rational" for corrections officials to think that inmates who are in Level 2 will be deterred from engaging in serious misconduct while in that unit because they wish to be transferred out and thus to escape such restrictions.

A majority opinion in Child Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004) involving the Establishment Clause. The court found that a school district could not preclude an evangelical group from distributing its newsletters where the school district permitted other private groups to do the same.
A majority opinion in Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004), involving the Free Exercise Clause. The case involved a Native American's ritual that used black bears. The state denied the plaintiff an exemption to a $200/year exotic wildlife dealer permit to keep the bears under the state's Game and Wildlife Code. The court found that the code invoked strict scrutiny. The majority found the code was "substantially" under-inclusive and did not meet strict scrutiny.
A majority opinion [9] in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999), holding that a holiday display on city property did not violate the Establishment Clause because it included secular symbols, such as a large plastic Santa Claus, in addition to religious symbols. Such mixed displays had previously been held constitutional by the U.S. Supreme Court. The ACLU argued that a previous city display that was ruled unconstitutional because it lacked secular symbols colored the purpose of the new display. Alito wrote:

As our prior discussion of Lynch and Allegheny County illustrates, the Supreme Court's decisions regarding holiday displays have been marked by fine line-drawing, and therefore it is not easy to determine whether particular displays satisfy the Court's standards. Under these circumstances, the mere fact that city officials miscalculate and approve a display that is found by the federal courts to cross over the line is hardly proof of the officials' bad faith.

A dissenting opinion in C.H. v. Olivia et al. (3rd Cir., 2000)[10] arguing that the removal and subsequent replacement in "a less conspicuous spot" of a kindergartener's religious themed poster was, at least potentially, a violation of his right to Free Expression
In Police v City of Newark, 1999; the opinion he drafted ruled that Muslim police officers in Newark could keep their beards for religious reasons.
In The Pitt News v Pappert, 2004; he backed the right of student newspapers to carry alcohol adverts as a matter of free speech.

Federalism

A dissenting opinion in United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), arguing that a U.S. law banning private citizens from owning submachine guns was outside the authority of Congress under the Commerce Clause of the U.S. Constitution in light of the then recently decided United States v. Lopez.
A majority opinion in Chittister v. Department of Community & Economic Development, 226 F.3d 223 (3d. Cir. 2000), which held that due to sovereign immunity states could not be sued under the Family and Medical Leave Act.

Executive branch

Several of Alito's writings argued for a powerful executive branch. According to People for the American Way, Alito has shown a strong predilection to concentrate power in the executive branch [11]. An example of this is the so-called "signing statement" concept invented by Alito to increase Presidential power and used by President Bush recently with regard to torture. [12].

The Unitary Executive concept is considered critical in this debate. We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president, Alito said, referring to his days in the Reagan administration. And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure. [13]

In an era when the White House is abusing power, is excusing and authorizing torture, and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling, Sen. Edward Kennedy, D-Mass., said in his opening statement. [14]

Reaction to the nomination

Support

Gary Bauer, president of the American Values Coalition, has said “Any Republican senator who abandons this conservative nominee should be considered disqualified as a future presidential or vice presidential candidate.” "The nomination of Harriet Miers has split conservatives unlike anything I can remember. The debate will not end, in fact it will become more intense."

"Harriet Miers was a feminist who had no judicial experience and her strongest qualification was that she's a friend of the president's. Alito has a terribly impressive record as a judge and as a prosecutor," said Phyllis Schlafly, Eagle Forum president.

Senate Majority Leader Bill Frist (R-TN), when asked about a possible filibuster by Senate Democrats, said "If the Democrats are looking for a fight, we'll be up for the fight. We won't back down. ... We're gonna get an up or down vote on the Senate floor and if the Democrats want a fight, they'll get one." Frist also said, "Judge Alito is unquestionably qualified to serve on our nation's highest court. And on the bench, he has displayed a judicial philosophy marked by judicial restraint and respect for the limited role of the judiciary to interpret the law and not legislate from the bench."

Senator Lindsey Graham (R-SC) affirmed that if the Democrats attempt to block the confirmation of Judge Alito, "the filibuster will not stand."

Senator Orrin Hatch (R-UT): "President Bush has hit a home run by selecting Sam Alito. Anyone would be hard-pressed to name another nominee with such a sterling and distinguished record. Judge Alito believes the law — not the judge — should determine the results in a case. Judges are not politicians, and my Senate colleagues would do well to remember this standard as they consider this outstanding pick."

Senator Sam Brownback, (R-KS): "I commend the president and congratulate Judge Alito on this nomination, and I look forward to the upcoming confirmation hearing, during which members of the Judiciary Committee will have a robust and, I hope, civil dialogue with the nominee about the meaning of the Constitution and the role of the courts in American life."

Secretary of Homeland Security Michael Chertoff: "He's a believer in the fact that a judge has a limited role to play and has a responsibility to play the role in an honest fashion — that you're not supposed to substitute your personal judgments for what the law is."

Senator John Cornyn, (R-TX): "Since Justice O'Connor announced her resignation, the president has engaged in unprecedented consultation with the United States Senate. It is now the responsibility of the Senate to consider this nomination in a thorough and timely fashion."

Senator David Vitter, (R-LA): "He has impeccable legal credentials and a well-grounded conservative judicial philosophy - just what so many, including me, consider most important."

James Dobson Leader of the 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."

Pat Robertson, a conservative Southern Baptist televangelist, called the nomination a "grand-slam home run."

Senator Ben Nelson, (D-NE) has said he was impressed by what he heard from Alito during his introductory visit. "He assured me that he wants to go to the bench without a political agenda."

Opposition

Sen. Patrick Leahy (D-VT) claims Bush "has chosen to reward one faction of his party, at the risk of dividing the country." He furthers saying Miers nomination exposed a "right-wing litmus test" for Supreme Court nominees.

Senate Minority Leader Harry Reid (D-NV) has said "This appointment ignores the value of diverse backgrounds and perspectives on the Supreme Court. The president has chosen a man to replace Sandra Day O'Connor, one of only two women on the court. For the third time, he has declined to make history by nominating the first Hispanic to the court." Reid also said the Senate would give Alito "an especially long hard look by the Senate because of what happened last week to Harriet Miers." He went on to say "Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people." He went on to say "President Bush would leave the Supreme Court looking less like America and more like an old boys club."

Sen. Charles Schumer (D-NY) has said "It is 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."

Sen. Barack Obama (D-IL) has said "Though I will reserve judgment on how I will vote on Judge Alito's nomination until after the hearings, I am concerned that President Bush has wasted an opportunity to appoint a consensus nominee in the mold of Sandra Day O'Connor and has instead made a selection to appease the far right-wing of the Republican Party."[15]

Sen. Barbara Boxer (D-CA) stated: "I believe this nomination is aimed at appeasing the most right-wing elements of the president's political base."

Sen. Ted Kennedy (D-MA) stated: "Rather than selecting a nominee for the good of the nation and the court, President Bush has picked a nominee whom he hopes will stop the massive hemorrhaging of support on his right wing. This is a nomination based on weakness, not strength."

Sen. John Kerry (D-MA) stated: “Every American should be deeply concerned that the far right wing which prevented Harriet Miers from even receiving a Senate hearing is celebrating Judge Alito’s nomination and urging the Senate to rubber stamp the swing vote on our rights and liberties. Has the right wing now forced a weakened President to nominate a divisive justice in the mold of Antonin Scalia?"[16]

House Minority Leader Rep. Nancy Pelosi (D-CA) stated:"Last week after Harriet Miers withdrew her nomination, I asked the President: Who was in charge? Today, the President answered: the radical conservative right is in charge of this Administration."

"Judge Alito is exactly the far-right nominee that the Republican Party's reactionary wing demanded after it 'Borked' Harriet Miers. Judge Alito is to the right of the existing Supreme Court on abortion, and he's to the right of all nine justices, even Scalia and Thomas, in advocating an extremely high burden of proof for employment discrimination cases." said Scott Moss, Marquette University Law School professor.

"Judge Alito would undermine basic reproductive rights, and Planned Parenthood will oppose his confirmation," said Karen Pearl, interim president. "It is outrageous that President Bush would replace a moderate conservative like Justice O'Connor with a conservative hardliner."

Kate Michelman, former president of NARAL Pro-Choice America, remarked that "the gauntlet has been, I think, thrown down."

"NARAL Pro-Choice America announced its opposition to President Bush’s nomination of Samuel Alito, Jr. to replace retiring Justice Sandra Day O’Connor. In choosing Alito, President Bush gave into the demands of his far-right base and is attempting to replace the moderate O’Connor with someone who would move the court in a direction that threatens fundamental freedoms, including a woman’s right to choose as guaranteed by Roe v. Wade." NARAL Press Release

By nominating someone who regularly sides with big corporations against the rights of ordinary Americans, the President chose a man who passes all of the right-wing litmus tests," said Ben Brandzel, Advocacy Director of MoveOn.org Political Action Committee. "Many of Alito's opinions as an Appellate Judge were so extreme that he was reversed and rebuked by his colleagues. But on the Supreme Court, joining with fellow extreme right-wingers, Scalia and Thomas, he could do real damage," Brandzel added.

"Justice O'Connor has provided more than a swing vote," said Steven R. Shapiro, the ACLU's National Legal Director. "She has been a moderating voice on critical civil liberties issues ranging from race to religion to reproductive freedom. Judge Alito’s position on each of these issues has been more hostile to civil liberties than positions taken by Justice O'Connor. His nomination therefore calls into question the court’s delicate balance that Justice O'Connor has helped to shape and preserve."[17]

Neutral

Senator John Thune (R-SD) said "Let's give Judge Alito a fair up or down vote, not left or right."

Senator Charles Grassley (R-IA) said "I expect the Judiciary Committee to conduct a fair and dignified hearing in a timely manner, followed by an up or down vote by the Senate."

Senator Dianne Feinstein (D - CA), who voted against John Roberts when he was nominated for Chief Justice, said, "I would hope that people on both sides would hold their fire, allow the Judiciary Committee to do its work, and not take a position until that work is completed." [18]

Additional information

Some who claim he is ideologically similar to United States Supreme Court Associate Justice Antonin Scalia have nicknamed him "Scalito," (a portmanteau of "Scalia" and "Alito" that appears to have originated in a 1992 National Law Journal article). Philadelphia journalist Shannon P. Duffy claims to have coined the nickname. [25] The National Italian American Foundation (a group that has supported the House Minority Leader Rep. Nancy Pelosi (D-CA) Nancy Pelosi, an Italian-American) has claimed the use of the "Scalito" nickname "marginalizes [Alito's] outstanding record." [26]

While there is no religious test to be a Supreme Court justice in the United States, the religion of a nominee can be significant to their supporters and opponents. If confirmed by the Senate, Alito would be the fifth Roman Catholic to serve on the current Supreme Court, joining two Jews and two Protestants, thus creating the first Court where the majority of justices are Catholic. Together, Catholics (24% of the U.S. population) and Jews (2% of the population) would constitute 77% of the Supreme Court membership, leaving Protestants (whose denominations constitute a majority of the American population) with the first minority on the court in its history. See also: demographics of the Supreme Court of the United States.

Alito was put on the 3rd Circuit Court of Appeals, in Philadelphia, by Bush's father.(Time Magazine)

He is a member in good standing of the Federalist Society, the influential group of conservative lawyers who advocate an originalist reading of the Constitution that sticks closely to text and the history of the writing of the Constitution.MSNBC

Alito has argued before the Supreme Court 12 times.

References

Bazelon, Emily (Oct. 31, 2005). "Alito v. O'Connor". Slate.
"Bush choice sets up court battle". BBC.
Dickerson, John (Oct. 31, 2005). "Ready To Rumble". Slate.
Espo, David (Oct. 31, 2005). "Bush Nominates Alito for Supreme Court". Associated Press.

External links

Transcripts & Video

Transcript of nomination
Text of Bush's nomination of Alito
rtsp://cspanrm.fplive.net/cspan/archive/sc/sc010906_alito1.rm CSPAN Video of Part 1 of Day 1 Hearing
- Transcript of hearing Day 1 Part 1
rtsp://cspanrm.fplive.net/cspan/archive/sc/sc010906_alito2.rm Day 1 Part 2
- Transcript of hearing Day 1 Part 2
rtsp://cspanrm.fplive.net/cspan/archive/sc/sc011006_alito1.rm Day 2 Morning Session
rtsp://cspanrm.fplive.net/cspan/archive/sc/sc011006_alito1.rm Day 2 Afternoon Session
- Trainscript of Day 2

Searchable version of confirmation hearing transcripts

Profiles