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Alito critics focus on 10 appellate opinions
Pittsburgh Post-Gazette


December 06, 2005

WASHINGTON - With 15 years on a federal appeals court and hundreds of decisions under his belt, Supreme Court nominee Samuel A. Alito Jr. has a much longer paper trail for liberal activists to pore over than Chief Justice John G. Roberts Jr., who served only two years on the U.S. Court of Appeals for the District of Columbia Circuit.

And pore over it they have.

Judge Alito's rulings on the Philadelphia-based 3rd U.S. Circuit Court of Appeals are not the only focus of groups like People for the American Way and the Alliance for Justice. Those organizations and senators sympathetic to them also have made an issue of a 1985 job application in which Alito, then a lawyer in the solicitor general's office, took pride in advancing legal arguments "in which I personally believe very strongly," including the view that there is no constitutional right to abortion.

But Alito's opinions on the 3rd Circuit, which address several of the issues he would face on the Supreme Court, have provided his liberal critics with chapter, verse and footnote for their argument, as the Alliance for Justice puts it, that "Judge Alito consistently takes positions that dovetail with the agenda of the right wing of the Republican Party"




As the U.S. Senate prepares for Alito's confirmation hearings in January, his critics have produced an unofficial top-10 list of decisions that they believe bear out their characterization of him.

With some justice, Alito's defenders accuse his critics of "cherry picking" decisions that support their portrayal of the nominee as an extreme conservative. The Bush administration also has provided reporters with counter-examples to show, as one senior Justice Department official put it, that Alito cannot be "pigeonholed."

Following are 10 cases that loom large in the argument by liberal and women's groups that Alito would move the high court to the right on issues involving abortion, employment discrimination, privacy, free speech, the rights of criminal defendants and the separation of church and state.

Planned Parenthood of Southeastern Pa. v. Casey (1991). Alito joined two colleagues in upholding most provisions of Pennsylvania's Abortion Control Act but dissented from the majority's finding that the law's spousal notification requirement posed an "undue burden" on the right to abortion. The U.S. Supreme Court, with Justice Sandra Day O'Connor in the majority, also rejected the spousal notification requirement.

Alito's critics say that his dissent, which held that involving husbands in discussions about abortion was a legitimate state interest, shows that he takes a paternalistic view of women and suggests that he doesn't really accept the basic holding of Roe v. Wade. His defenders note that, like his colleagues, he was struggling to apply the "undue burden" standard enunciated by Justice O'Connor in previous cases, a test that Justice O'Connor herself defined differently from one case to another.

United States v. Rybar. (1996). In this case, Alito dissented from a 2-1 ruling upholding the constitutionality of a federal law making it a crime to possess or transfer a machine gun. Alito wrote that the machine-gun ban was "the closest extant relative" of a law voided by the Supreme Court in 1995 that banned the possession of firearms near schools. Both laws, Alito wrote, "regulate the purely intrastate possession of firearms" and lacked findings by Congress of a link to interstate commerce.

Alito's critics suggest that his opinion in Rybar indicates that he would unfairly restrict Congress' authority under the Constitution's Commerce Clause to deal with problems that are national in scope. His defenders reply that he was making a good-faith effort to apply the reasoning of the Supreme Court's 1995 decision, in which Justice O'Connor was in the majority.

Doe v. Groody (2004). In this case, which involved a damages suit against police who searched a 10-year-old girl during a drug raid, Alito dissented from the majority's holding that the police did not enjoy qualified immunity to lawsuit. People for the American Way has said of this case that "Alito would have upheld the strip search of a mother and her ten-year old daughter, even though the warrant allowing the search did not name either of them."

In his dissent, Judge said the officers were entitled to immunity because supporting documents for the warrant led them reasonably to believe they could search all residents of the house.

Chittister v. Pennsylvania Department of Community and Economic Development (2000). Writing for the court, Alito ruled that a state employee could not sue the state for denying him sick leave guaranteed by the federal Family and Medical Leave Act. Under a series of decisions by the Supreme Court, states may be sued in federal court only if Congress has abrogated the states' sovereign immunity to lawsuits under the 11th Amendment, and Congress can do that only if it amasses evidence of invidious discrimination in violation of the 14th Amendment of the Constitution.

Some of Alito's critics say that his reasoning was rejected by the Supreme Court in a 2003 decision, Nevada v. Hibbs, in which the court ruled that a state employee could sue under the family and medical Leave Act because he was denied time off to care for an ill family member.

But Justice Department lawyers note that the two cases are not the same: In Hibbs, the Supreme Court construed the "family care" provisions of the act as an attempt to deal with gender stereotypes that assumed women would stay home with sick relatives.

But in ruling that suits could not go forward under the personal sick leave provisions of the FMLA, Alito said that Congress had offered no proof of "the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination ... ."

Sheridan v. E.I. DuPont de Nemours and Co. (1996) and Bray v. Marriott Hotels (1997). Alito's critics say his opinions in these two cases show that he takes a narrow view of legal protections against job discrimination.

In the Sheridan case, involving a hotel employee who alleged that she was denied a promotion because of her sex, Alito was the lone dissenter in a 10-1 ruling making it easier for a plaintiff to have her allegations brought to trial.

In the Bray case, an African-American employee of another hotel claimed she was passed over for a promotion in favor of a white employee and wanted to cite violations of internal hiring procedures and conflicting explanations by supervisors as evidence of bias. Alito dissented in the 2-1 decision and warned that the majority's approach would lead to "an unwarranted extension of the anti-discrimination laws" because employers often fail to follow their internal procedures "to the letter."

Riley v. Taylor (2001). As proof that Alito is insensitive to racism in the legal system, his critics cite his dissent in this case from a ruling that a prosecutor improperly used his peremptory challenge to exclude African-American jurors from the murder trial of an African-American defendant.

Disputing the majority's "simplistic analysis" that race was the reason for the exclusion, Alito compared it to the assumption that because five out of six recent presidential elections were won by left-handed candidates voters were biased against right-handed people.

Justice Department officials say that the notion that Alito is insensitive to bias in jury selection is countered by a decision last February in Brinson v. Vaughn, in which Alito ruled in favor of a defendant who alleged racial bias by the prosecution in jury selection.

ACLU v. Schundler (1999). In this case involving a holiday display in front of the Jersey City, N.J., city hall, Alito upheld the constitutionality of the tableau after Frosty the snowman and symbols of Kwanzaa were added to a Christmas tree, nativity scene and menorah. Critics cite this ruling and others as proof that Alito would further erode the "wall of separation" between church and state.

Alito was criticized by a colleague for questioning language in an earlier 3rd Circuit decision expressing skepticism about whether even the modified display was constitutional.

Alito's defenders note that the Supreme Court itself has upheld the constitutionality of holiday displays that mix religious and secular symbols.

Rompilla v. Horn (2004). Alito wrote the majority opinion in this case denying the appeal of Ronald Rompilla, who was sentenced to death for the 1988 murder of an Allentown tavern owner. Alito rejected Rompilla's claim that his defense had been inadequate because his lawyer didn't look at prosecution files that could have pointed to mitigating factors like alcoholism, mental retardation and the fact that the defendant came from an abusive home.

In June, the Supreme Court reversed the 3rd Circuit and set aside Rompilla's death sentence. With O'Connor joining the court's five liberals, the court ruled that Rompilla's original lawyers had failed to "make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial."

Banks v. Beard (2005). Although even his critics say that Alito has written several decisions upholding First Amendment rights, they say he is less willing to protect expression by prisoners and cite his opinion in this case. Alito dissented from a holding by the 3rd Circuit that Pennsylvania could not withhold newspapers, magazines and family photographs from inmates in the Long Term Segregation Unit for especially dangerous offenders.

The majority struck down the restrictions, saying that "prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Alito dissented, writing that the restrictions were a "rational" attempt to change prisoners' behavior and satisfied the demands of the First Amendment.

Last week, the U.S. Supreme Court announced that it would hear an appeal of the 3rd Circuit ruling filed by Pennsylvania Attorney General Tom Corbett. If confirmed, Alito probably would not take part in the Supreme Court's review of the 3rd Circuit ruling.


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