For many intellectuals, the ideal of Blind Justice, impartially weighing her scales, went out the window about 80 years ago. At Yale Law School in the 1920s and '30s, a highly influential group of scholars called the Legal Realists argued that the law was not a set of fixed, unchanging rules--"not a brooding omnipresence in the sky," as Justice Oliver Wendell Holmes once put it. The Legal Realists contended that, inevitably, judges were influenced by their political views and personal values, whether they admitted it or not. There was a lot of truth to what the Legal Realists were saying. Today it is almost ajournalistic cliche that judges are either liberal or conservative, that the law is nothing but politics in disguise and that judges couldn't be neutral if they tried.
Nonetheless, they are supposed to try. And, in fact, most judges do try to set aside or at least check their personal political leanings when ruling on a case. Judging from his life story and judicial record, few try harder than Sam Alito.
When Alito arrived at Yale Law School in the fall of 1972, most of the students saw themselves as political activists. At Yale, it was fashionable (then and now) to believe that the law could be used as a tool of social reform. In this hothouse atmosphere (Bill and Hillary Clinton were third-year students) Alito was an island of dispassion. A classmate, Anthony Kronman, recalls that the first time Alito was called on in class, "he answered with such calm that I was taken aback." Unlike the other students, who viewed the law through an ideological prism, Alito was more interested in the nuts and bolts--the complexities, the importance of precedent, the uses of logic and reason. "At the time, if you had asked me what Sam's political slant was, I would have been at a loss to tell you," says Kronman, who is a former dean of Yale Law School.
Over the next several weeks, Democratic activists will go all-out to paint Alito as a hard-line conservative. He will be branded "Scalito," a perfect twin for Justice Antonin Scalia, one of the Supreme Court's most reliably right-wing votes on issues such as abortion and gay rights. The left-wing interest groups, which have been preparing for years for a once-in-a-generation fight to stop a right-wing judicial appointment, are planning on flooding the airwaves and Internet with anti-Alito diatribes. They see Alito as another Robert Bork, the conservative Supreme Court nominee they blocked with a furious lobbying campaign in 1987 during the Reagan administration.
They may have picked the wrong man. Alito, 55, is, like Scalia, an Italian-American from New Jersey, but he has a different judicial temperament. Scalia (like Bork before him) is charmingly acerbic, outspoken and doctrinaire. Alito is none of the above. He is modest and dweebish; he does not opine with bold strokes or from preconceived notions but rather analyzes meticulously, tirelessly, tediously and, usually, colorlessly.
Conservatives will praise Alito for his "judicial restraint" while secretly counting on him to deliver the right results, in particular voting to overturn Roe v. Wade , the court's 1973 decision guaranteeing women a right to have abortions. Right-wingers, too, may be disappointed. Alito's classmate from Yale, Mark Dwyer, an assistant district attorney in New York, says, "Even if he does think abortion is wrong, he would never vote to overturn it, given his deference to precedent." Predicts Alito's old friend: " Roe is totally safe." In fact, it is hard to predict with assurance. While lower and appellate judges must follow precedent, Supreme Court justices have more freedom to reverse their own rulings.
Asked to name his favorite justices, Alito gives telling answers. He did pick a conservative, the late chief justice William Rehnquist, but he also picked justices who are almost impossible to politically label, John Marshall Harlan and Byron (Whizzer) White. Harlan and White were distinguished by an almost ruthless willingness to decide cases based on the law and the facts, and not follow the prevailing political winds. Alito's fourth choice was William Brennan, a fellow New Jerseyan and Republican appointee (by President Eisenhower) who became a champion of the liberal Warren Court.
To be sure, Alito is not likely to wind up on the left wing of the court like Brennan. He may not ally with Scalia and Justice Clarence Thomas on the right, but at least initially he will probably align with the new chief justice, John Roberts, to the right of the current court's center. Like Roberts, he will not have an expansive view of judicial power and he will not look for new rights in existing laws and constitutional provisions.
Everything about Alito's upbringing and education suggests that he has always chosen logic and reason over partisan passion. In high school during the politically charged '60s, his friends assumed that he did not care for politics. They figured he was a moderate Democrat. He was a shy grind, but universally popular among the jocks, the carburetors (car junkies in leather jackets) and brains at Hamilton High School East. "Everyone liked Sam," says his classmate Victor McDonald, in part because he joined no clique but treated everyone equally and respectfully. "He wasn't an impassioned orator with wild arguments," says McDonald, a retired staff lawyer in the New Jersey State Senate Republican legislative office. "That was more me. He would just line up his arguments, boom, boom, boom." While Alito was not much of an athlete and definitely not cool, his classmates saw his promise. In a joke issue of the school newspaper, a headline read, SAM ALITO DEFEATS GOD IN LANDSIDE ELECTION FOR RULER OF THE UNIVERSE.
Alito grew up in a trim two-story red-brick house on a quiet street, with the Stars and Stripes outside and a television that was seldom on. His father made a career out of nonpartisan public service. As director of New Jersey's Office of Legislative Services, Samuel Sr., an Italian immigrant, was scrupulously evenhand-ed in providing research and drafting legislation for Republican and Democratic lawmakers alike. In the Alito house, the primary value was education. Alito's father began as a teacher and his mother was an elementary-school principal. On Sundays, the teenage Alito was a lector, or Scripture reader, at Our Lady of Sorrows Catholic Church. He never told his friends.
At Princeton, he avoided the elitist eating clubs, but also the leftists demonstrating against elitism. "Sam was one of those people who decided he was going to get a good education at Princeton and simply ignored those idiots in SDS," says his senior-thesis adviser, professor emeritus Walter Murphy. Alito's "passion," says Murphy, was "logic. He wanted people to argue logically and reasonably." Alito was a student in Princeton's Woodrow Wilson School, a haven for sober-minded policy wonks. In 1972, he wrote a report for a 16-student- member conference on the "boundaries of privacy in American society" that called on legislatures to repeal some laws making homosexuality a crime. The student report was well ahead of the time. But it's hard to say if Alito was reflecting his own view or that of the other students, much less whether his report suggests he would back gay rights as a justice. Apparently, he sounded like a justice to other students. His Princeton yearbook predicted that Alito would "eventually warm a seat on the Supreme Court."
Unlike a lot of the liberal social activists at Yale Law School who headed straight for Wall Street corporate-law firms after graduation, Alito has devoted his career to public service. He was universally liked by his colleagues as a judicial law clerk, prosecutor, Reagan Justice Department official and judge on the U.S. Court of Appeals (appointed by the president's father, George H.W. Bush, and easily confirmed by the Senate in 1990). "He was unassuming, non-egotistical and self-effacing," says Bill Maderer, who worked in the U.S. Attorney's Office in Newark, N.J., in the late '70s. "Look at somebody like Eliot Spitzer. This is not Sam Alito."
His one diversion, aside from his family (he has a daughter in high school and son at U.Va.), is baseball. As a federal judge he would doff his robe and wear a baseball uniform to coach his son's Little League games. A diehard Philadelphia Phillies fan, he once attended the Phillies' fantasy-baseball camp, where he huffed and puffed after grounders with other middle-aged men. He keeps a life-size poster of the Phillies' Hall-of-Famer All-Star Mike Schmidt in his chambers.
As a judge, Alito left a 15-year paper trail that can be fairly described as conservative, not knee-jerk, but nothing to suggest he will one day become a civil-rights crusader. He frustrated litigants, often minorities and union members, who, Alito believed, wanted to stretch the law to get their day in court. Corporations and property owners by and large welcomed his rulings and liberal interest groups did not. As a participant in the conservative Federalist Society, he spoke out against the now defunct Special Prosecutor Act, scourge of officialdom from Watergate to Monicagate, as an infringement on executive power. The creation of an independent counsel "hit the doctrine of separation of powers about as hard as heavyweight champ Mike Tyson usually hits his opponents," Alito said at a 1989 Federalist Society-sponsored debate, using the sort of metaphor generally missing from his bland judicial opinions.
It would be a mistake to read too much into Alito's opinions from the bench. Consider two that have his opponents up in arms. In 1991, he wrote a dissent arguing that the state of Pennsylvania had the right to require women to give notice to their spouses before obtaining an abortion (with some exceptions, including spousal abuse). The U.S. Supreme Court went the other way in Planned Parenthood v. Casey , striking down the state's law as an "undue burden" on a woman's right to an abortion. Alito's dissent is being held up by his opponents as a strong indicator that he would vote to overturn Roe v. Wade .
On closer inspection, it shows no such thing. Alito's opinion displays him wrestling to follow Supreme Court precedent on abortion, as then murkily defined by the court's swing vote, Sandra Day O'Connor. (Alito last week told Sen. Dick Durbin of Illinois, the Senate's No. 2 Democrat, that "he spent more time worrying over it and working on that dissent than any he had written as a judge," said Durbin.) He ended up on the wrong side of the Supreme Court in Casey in part because Justice O'Connor, slowly moving to the left, surprised experts in Casey by taking a more pro-choice approach than she ever had before. It is actually possible to paint Alito as a liberal on abortion rights. He struck down restrictions on partial- birth abortions as well as a law putting restrictions on women's receiving Medicaid funds for abortions after rape or incest. In both cases, actually, he was not expressing a personal view on abortion; he was merely following precedent.
In one of the wilder charges against him, Alito has been dubbed "Machine-Gun Sammy" for his dissent arguing to strike down a federal law banning private possession of machine guns. Alito was not fronting for the gun lobby; rather he was following a one-year-old Supreme Court precedent in another gun case. He contended that Congress could not regulate the private possession of machine guns unless it passed a law showing a connection between owning a machine gun and interstate commerce. Alito stressed that fixing the law was easy, only a matter of dotting a few i's and crossing some t's.
These nuances are likely to get lost as the interest groups crank up a campaign to paint Alito as "Scalito." In an ad that began airing around the nation this weekend, People for the American Way calls on voters to take a stand against "giving the radical right wing the power to choose who sits on the Supreme Court." Ralph Neas, head of PFAW, led the Block Bork Coalition almost two decades ago, and he is a wily and effective agitator. He distributed press packets to 8,500 journalists before Bush formally announced the nomination, and he has anti-Alito petitions circulating in 25 states. Conservatives, too, are spending money on the coming media battle. Last week the conservative grass-roots organ-ization Progress for America bought $425,000 worth of TV ads praising Bush's choice for the court. "Alito is the darling of the radical right," says Neas. "He is precisely the person they wanted."
Actually, the radical right would have preferred someone more reliable, like appeals court Judges Michael Luttig and Edith Jones. When Supreme Court vacancies began opening last summer, Alito was the White House's second choice, after Roberts. Interviewed around the same time by President Bush, Roberts beat out Alito in July to fill the slot left open by O'Connor's retirement. Bush thought that Roberts's presentational skills were a little smoother than the geeky Alito's, says a White House aide who did not wish to be identified talking about internal deliberations. The president was more confident that Roberts would perform well at his confirmation hearings--and knew that Roberts, a judge for only two years, had a shorter paper trail to chew on than Alito, a judge for 15. But Bush liked Alito's "quiet confidence," says this aide.
Making the rounds on Capitol Hill last week, Alito impressed the reporters in his wake. They called him "Bobblehead" for bobbing his head right and left and wearing a fixed grin while remaining dead silent. But he seems to have disarmed senators by being more forthcoming in his private chats than either Roberts or Harriet Miers, the White House counsel whose nomination fizzled. "He wears his judicial philosophy as comfortably as an old sweater," says Sen. Lindsey Graham, Republican from South Carolina. Alito was unusually frank about religious freedom, suggesting that he would permit more of it, and convinced Sen. Durbin that he--like John Roberts--saw a privacy right in the Constitution. This is significant; the right to privacy is not spelled out in the Constitution and the right to abortion largely rests on it.
Alito's foes will try to portray him as "out of the mainstream." The White House says that it welcomes this debate, and points to polls showing that 70 percent of the American people say that women should have to tell their spouses before getting an abortion. Alito's hearings will not come until January, giving his foes plenty of time to trawl through his life and judicial record looking for ammunition to use against him. Last week Bush took aside Alito's two children, Philip, 19, and Laura, 17, and said, "Don't pay attention to what they say about your old man. You have a great father, and he's going to be a great Supreme Court justice." Whether or not he is great, he is likely to be one who tries to be scrupulous and impartial.