(by Josh Gerstein, Nov. 1, 2005, NYSun.com) WASHINGTON – As soon as reports emerged yesterday that Judge Samuel Alito Jr. would be President Bush’s newest nominee to the Supreme Court, advocates on both sides of the ideological divide were throwing around the moniker “Scalito,” which casts Judge Alito as an outspoken (and perhaps also Catholic and Italian) conservative in the mold of Justice Scalia.

The nickname seems intended to paint Judge Alito as an ideological firebrand who will strike fear in the hearts of liberals, while inspiring conservatives.

The trouble is that, according to those who have firsthand experience arguing before or working for Judge Alito, the comparison to Justice Scalia is almost entirely off-base.

“It’s absolutely not accurate,” a Pennsylvania attorney who has argued several cases before Judge Alito, Howard Bashman, said. “I don’t view him as a Scalia clone at all.”

While Justice Scalia is known for making pointed and sometimes caustic comments from the bench, Judge Alito is more reserved. “He’s very restrained and asks only a few questions,” said Mr. Bashman, who also runs a popular legal blog, How Appealing. “He’s somewhat aloof at oral argument. In personal interactions, he’s almost shy, but quite charming if you make the effort to get to know him,” the lawyer said.

A one-time law clerk for the judge, Clark Lombardi, said he is baffled by the repeated efforts to link his boss to Justice Scalia. “Their temperament and their style of discourse is very different. There’s no comparison between them at that level,” said Mr. Lombardi, who is a law professor at the University of Washington. “You couldn’t find a person who’s more respectful and open in their discussions than Judge Alito. Justice Scalia has been nothing if not combative in his opinions. It’s just a different style,” he said.

Lawyers who have clerked for Judge Alito said his conservative philosophy rarely dictated the decision in a particular case. “It was never an issue where I felt there was going to be a conservative outcome simply for the reason of there being a conservative outcome,” Jeffrey Wasserstein, a Washington, D.C., attorney who described himself as a liberal Democrat, said. “In the 5% of cases where we disagreed, I would guess it was because he’s a lot smarter than I am,” Mr. Wasserstein said.

Another clerk, Cheryl Stanton, said Judge Alito did not apply ideological litmus tests when hiring recent graduates to work in his chambers. “The judge never asked me my political ideology,” she said. “This idea that he is a radical and an ideologue just doesn’t bear true to my experience with him.”

Samuel Alito Jr. was born in Trenton, N.J. in 1950. He attended Princeton as an undergraduate and went on to Yale Law School. He worked as a federal prosecutor in New Jersey before moving to Washington for a seven-year stint in the solicitor general’s office at the Justice Department. In 1987, he returned to New Jersey, serving as the U.S. Attorney there.

In 1990, President George H.W. Bush named Judge Alito to Court of Appeals for the 3rd Circuit.

At the White House ceremony announcing his nomination yesterday, Judge Alito, 55, was joined by his wife, Martha, and their two children, Philip and Laura.

A law school classmate of Judge Alito’s, Edward Zelinsky, said that he believed the judge’s nomination will serve as a good antidote to the pressure group-driven debates that have dominated past battles over the Supreme Court. “I’m very distressed by the attempt to turn these confirmation processes into political-sound bite, focus-group campaigns,” said Mr. Zelinsky, who is a law professor at Cardozo. “I think he brings to the court the kind of legal, professional, and scholarly skills that the court needs,” he said. “I’m a Democrat for Sam,” Mr. Zelinsky added.

Even those who worked closely with Judge Alito said they could offer few insights into his out-of-court habits. At one point in the late 1990s, law clerks who discovered that the judge was coaching his son’s Little League team turned up at a game to cheer the team on. “He was so enmeshed in his coaching he didn’t realize we were in the stands at first,” Ms. Stanton said.

The judge’s taste for coffee also inspired clerks to devise a special brew for his 50th birthday in 2000. The coffee, “Judge Alito’s Bold Justice Blend,” is still sold at the T.M. Ward Coffee Company shop near the Newark federal building that houses the judge’s chambers. “Everybody likes it,” a shop staffer, Vera Barbosa, said. “If for some reason I don’t have ‘Judge Alito’ on they come up to me and say, ‘I want Judge Alito.'”

While liberal interest groups have begun publishing lists of cases in which Judge Alito allegedly slighted employees claiming sex or race discrimination, the judge’s allies claim that on occasion he will stretch the law a bit to achieve a humane result.

They point to an opinion Judge Alito wrote in 2002 favorable to a former elevator operator, Pauline Thomas, who was caught in a kind of Catch 22. She was unable to win disability payments from the Social Security Administration because she could still perform as an elevator operator, even though that occupation had been all but eliminated from the American economy.

Judge Alito rejected the government’s interpretation of the law, writing that it would lead to “absurd results.”

The Supreme Court reversed Judge Alito’s decision. In a unanimous opinion, the justices found that the 3rd Circuit’s interpretation was strained and that the courts should defer to the government agency’s reading of the statute.

In a twist that might confound some of Judge Alito’s present-day critics, the opinion reining in Judge Alito was written by none other than Justice Scalia.

Reprinted here with permission from The New York Sun. Visit the website at NYSun.com


To answer the questions below, see pages 3-6 of “Cornerstones of American Democracy” found at JudicialNetwork.com (NOTE: The report is in pdf format)

1.  Define judicial restraint, as explained on the bottom of page 3.  Why is it important for judges to exercise judicial restraint?

2.  Define judicial activism as explained on page 4.

3.  What is judicial review and why is it often confused with judicial activism? (page 4)

4.  Read the examples of judicial restraint and judicial activism found on pages 4-6.  How does “The Need for Legitimacy” found on page 6 explain the absolute necessity for judges to exersize judicial restraint?

5.  Based on the information from today’s article, do you think that the new nominee to the Supreme Court (Judge Alito) will practice judicial activism or judicial restraint?  Explain your answer.  Be specific.

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