Nina Totenberg: Ideology, of course, is in the eye of the beholder. One person's extremist is another's moderate. Right now the Bush administration is fiercely seeking to portray Judge Alito as a mainstream judge. Within hours of his nomination, White House aides distributed to Senate Judiciary Republicans a 600 page briefing book painting Alito as mainstream. And in a briefing for reporters, a senior Administration official cherry-picked Alito's occasional liberal opinions to highlight that portrayal. On Capitol Hill, GOP senators promptly began singing from the same page. Here, for example, is Ohio Senator, Mike DeWine:
DeWine: Judge Alito is really, I think, in the mainstream of conservative thought and conservative judges in this country
Totenberg: In the rarified community of Constitutional scholars, though, few liberals or conservatives are buying that line. Most seem to agree that Alito is smart, seasoned and of good character. But, as Duke Law School's Neil Siegel put it:
Siegel: I don't know how you can have your cake and eat it too... how you can respond to a revolt on the right wing of the Republican Party... have Harriet Miers withdraw, have Samuel Alito nominated, have the Right dance in the streets and announce we're on the short course to overturning Roe and then turn out a 600-page briefing book in which he's portrayed as a very moderate, mainstream type of jurist.
Totenberg: Siegel would qualify as a liberal by most accounts but Bruce Fein, who served with Alito in the Justice Department, is a true-blue hard-core conservative. And he agrees with Siegel that the White House is trying to portray Alito as something he is not.
Fein: Those who think Sam Alito is a duplicate of Sandra Day O'Connor or trying to suggest or insinuate that the Court's philosophical balance will not be altered by Alito simply are being exceptionally disingenuous. I think they fear that if Alito is perceived as some kind of Bork in its impact on the Supreme Court, then the result might be Bork-like. The difference is, Republicans have 55 votes in the Senate now. At the time of Bork, they were a minority.
Totenberg: University of Chicago law professor Cass Sunstein has coded all of Alito's dissenting opinions, putting them into one of three categories: liberal, conservative, or "can't tell." The result, says Sunstein, is stunning. 91% of Alito's dissents take positions more conservative than his colleagues on the appeals court, including colleagues appointed by presidents Bush and Reagan.
Sunstein: It's noteworthy, because in a way when a judge bothers to dissent from the majority, it's a good clue as to what the judge is about.
Totenberg: And Sunstein says that Alito's dissent rate is far more lopsided than very conservative judges. For example, one of the darlings of movement conservatives, Judge J. Michael Luttig, dissented in a liberal direction 32% of the time, while Alito leaned liberal in his dissents 9% of the time. Most celebrated of all Alito's opinions is his 1991 abortion dissent, later repudiated by the Supreme Court. At issue was a state requirement that a woman notify her husband before she could have an abortion. Alito found the spousal notification requirement did not place an undue burden on a woman's right to an abortion. The undue burden test being the one crafted by the justice he's been nominated to replace, Sandra Day O'Connor. He said that, because most married women seeking abortions do tell their husbands, and because the law provided an exception for women who'd reported to police that they were abused, he concluded that the law did not impose an undue burden. The Supreme Court in an opinion written in part by O'Connor a year later strongly disagreed. Women who are abused, the high court said, do not report their abuse and often will not get abortions if the price is incurring the wrath of their husbands. Moreoever, the Court said, adult women should not be treated as children. They have the right to make medical decisions without consulting anyone else. Duke Law professor, Neil Siegel, says that Alito's abortion dissent has no real-world appreciation for the problems that are faced by battered women seeking abortions.
Siegel: He said that's a very small percentage of women. For most women this is not a problem. In talking to the their husbands, they actually foster communication and deliberation. What Justice O'Connor said was, Don't talk about all the instances in which the law doesn't matter, talk about the relatively few instances in which women are vulnerable and the law makes all the difference in the world to them.
Totenberg: Conservative Bruce Fein says that Alito would likely uphold most restrictions on abortions. He's not sure, though, whether the judge would vote to invalidate Roe v. Wade because it's been on the books for so long.
Fein: There's no doubt in my mind, however, that his reasoning is such that he does not feel comfortable with the foundation of Roe v. Wade.
Totenberg: Another area in which Alito has a clearly conservative record is states' rights. In a variety of cases, he's voted to limit Congressional power over the states. Five years ago he authored an opinion for his court invalidating the key enforcement section of the Family and Medical Leave Act as it applied to the states. In particular, Alito wrote, the federal government could not subject the states to individual damage suits for failure to comply with federal law requiring all employers to give unpaid medical leave to employees. In 2003, the Supreme Court reached the opposite conclusion in a similar but not identical case. In another case involving Congressional power, Alito voted in dissent to invalidate a long-standing federal ban on possession of machine guns because the conviction at issue involved possession of the gun within state lines. University of Chicago Law professor, Cass Sunstein, sees this dissent as quite radical.
Sunstein: If it's the case that Congress lacks Constitutional power to criminalize possession of machine guns, that's a very big deal because machine guns frequently travel in interstate commerce.
Totenberg: And Duke's Neil Siegel sees it as indicative of a larger Alito trend.
Siegel: With Judge Alito, it seems like he's got a bit of the federalism bug in that case he votes... the proposition that the federal government can't regulate possession of machine guns -- which is way beyond anything the Rehnquist Court has ever said. I think you see not a whole lot of deference to congressional power.
Totenberg: Bruce Fein, though he differs in his politics from Sunstein and Siegel, agrees that if Judge Alito replaces Justice Sandra Day O'Connor on the Supreme Court, the result would likely be to restrict to some degree the power of Congress to legislate nationally.
Fein: Will this mark a difference in philosophy of the Supreme Court in interpreting Congressional powers under the Commerce Clause? I think the answer is definitively yes.
Totenberg: A look at Judge Alito's decisions involving individual rights seems to indicate a similar departure from the Court's views in the last half century. Take for instance questions of the separation of church and state.
Fein: I think he'll be much more accomodating to non-coercive postings and displays of religious symbols and representations that are not undertaken for the purpose of proselytizing or trying to convert.
Totenberg: In race and gender cases, Alito has a record that would make it more difficult for minorities and women to bring employment discrimination claims. And Bruce Fein, who worked with Alito in the Reagan Justice Department, believes the Judge is not sympathetic to affirmative action, even in college admissions. In criminal law cases Alito, a former prosecutor, is seen as quite deferential to the government. Perhaps the starkest illustration of that is a lawsuit stemming from a police strip-search of a woman and her 10-year-old daughter. The two happened to be at the home of a drug suspect when police raided the place. The appeals court ruled that the strip-search was clearly illegal. The author of that opinion was then-Judge Michael Chertoff, now head of the US Department of Homeland Security. Alito dissented. Liberals view the Alito nomination with fear and trepidation. Conservatives see it as their moment to seize the day, to turn legal doctrine dramatically in another direction.
Fein: I think it will mean a genuine turning point.
Totenberg: Liberals agree with that assessment.