Scalito Scary to Nonconservatives

While Bush's Harriet Miers Supreme Court nomination prompted teeth gnashing from activists and interest groups on both the left and right, the president's about-face with the nomination of Samuel Alito has calmed conservatives and left the gnashing to the left.

Exactly how much whining from right-wing conservatives does it take to get President George W. Bush to do what they want? About three weeks, apparently. Just three days after White House Counsel Harriet "No Judicial Experience – And That's a Good Thing" Miers withdrew her name from consideration to replace retiring Supreme Justice Sandra Day O'Connor, Bush nominated federal appeals Judge Samuel "More Experience Than God" Alito in her place. While the Miers nomination prompted much teeth gnashing from activists and interest groups on both the left and right, the Bush about-face has calmed conservatives and left the gnashing to the left.

It is true that the 55-year-old Alito has an impeccable pedigree – an Ivy League education, experience with criminal law, and 15 years on the 3rd U.S. Circuit Court of Appeals bench from which he's authored some 300 opinions. But it is also true that Alito is often called "Scalito" or "Scalia-Lite," referring to his tendency to rule along the same conservative line as Supreme Court Justice Antonin Scalia – arguably the current court's most conservative member. For many, that alone wouldn't make Alito a questionable nominee, but the fact that he would replace the centrist, swing-voting O'Connor is causing concern and suggests that the New Year may kick off with a steamy political fight when Alito's confirmation hearings begin on Jan. 9.

Among the issues likely to spark contention are opinions Alito has authored on several hot-button issues, including abortion, the right to privacy, the death penalty, and other criminal law concerns – like the right to be free from unlawful search and seizure – and Congress' ability to regulate various activities under the Constitution's so-called Commerce Clause. Indeed, this summer O'Connor was the deciding vote in a Supreme Court decision overturning an Alito-authored ruling in the death penalty case Rompilla v. Beard. In that case, Ronald Rompilla argued that his 1988 death sentence should be overturned because his defense attorneys failed to investigate his background – which included childhood neglect, alcoholism, and possible mental retardation – to present as mitigating evidence at trial. Alito denied the appeal, writing that "it appears to us that Rompilla is now arguing that this trial counsel were constitutionally derelict in failing to take all the steps that might have been pursued by the most resourceful defense attorneys with bountiful investigative support," he wrote. "But while we may hope for the day when every criminal defendant receives that level of representation, that is more than the Sixth Amendment demands."

In the case of Doe v. Groody, Alito – in dissenting from the appeals court's majority opinion (authored by former justice turned Homeland Security Director Michael Chertoff) – ruled that New Jersey police acted within the confines of the Fourth Amendment when they strip-searched during a drug raid the wife and 10-year-old daughter of their suspect, even though their warrant did not specify their right to do so. The majority ruled that the family's rights were violated. Alito argued that that was a "technical and legalistic method of interpretation that is the antithesis of the 'commonsense and realistic' approach that is appropriate."

In 1992, O'Connor was also the deciding vote that overturned Alito's opinion in Planned Parenthood v. Casey, in which he opined, in part, that a woman had a legal duty to notify her husband prior to seeking an abortion. "Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage," O'Connor wrote. "Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code."

Alito also ruled that the government's ban on the sale of machine guns to individuals was an unconstitutional application of the Commerce Clause, which allows Congress to regulate activities involving interstate commerce – and which it uses to regulate everything from environmental protection to civil rights. "That opinion does signal that, unlike Justice O'Connor … he will be interested … in restricting Congress' power … in a way that could have serious implications for the Endangered Species Act and the Clean Water Act," Cass Sunstein, a University of Chicago professor of law and political science, told National Public Radio.

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