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Alito’s Record Defies Labels

Times Staff Writers

For the second time in three tries, President Bush has found a Supreme Court nominee who does not present an easy target for Senate Democrats.

Although liberal activists are portraying Judge Samuel A. Alito Jr. as a right-wing extremist, his 15 years’ worth of legal opinions do not promise fealty to any ideology. Though many of his rulings favor business or prosecutors, they are often narrow -- and a sizable number cut the other way.

Accordingly, Democrats in the Senate are cautious, and there is little or no talk of a filibuster.

“My instinct is that we should commit” to an up-or-down vote, Sen. Joseph R. Biden Jr., a member of the Judiciary Committee, said Sunday on ABC’s “This Week.” “I think that judgment won’t be made until the bulk of us have had a chance to actually see him and speak to him. But I think the probability is that [such a vote] will happen.”

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Democratic staffers who have been reading Alito’s opinions acknowledge that they do not read like the work of a right-wing ideologue.

“He isn’t Robert Bork,” said a top aide to a Democrat on the Senate Judiciary Committee, who spoke of the internal discussions on the condition that he not be identified. “He doesn’t have sharp elbows in his opinions. He seldom attacks or says the other side is wrong. He just says, ‘Here’s a better argument.’ That’s different.”

A similar dilemma confronted liberals during the summer. John G. Roberts Jr., Bush’s first nominee and now the chief justice, had a long record as a lawyer arguing before the Supreme Court; some clients were liberal and some conservative. His only brashly conservative comments came in memos he wrote as a young lawyer in the Reagan administration.

Alito, who was nominated Nov. 1, has a much longer public record -- including more than 300 opinions from his years on the U.S. 3rd Circuit Court of Appeals in Philadelphia -- but he appears to have even fewer sharp-edged comments on highly charged issues. His legal opinions carefully explain the facts and the law. He shuns broad pronouncements. And the results do not fit into a clearly conservative mold.

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Some recent examples:

* In February, Alito wrote an opinion that reopened the case of a black murder defendant in Pennsylvania because the prosecutor had removed 13 of 14 blacks from the jury pool. This strongly suggests racial bias had infected the trial, Alito said.

* Last fall, overturning a federal judge, Alito ordered a school district to allow an emotionally troubled New Jersey boy to transfer from a school where he was harassed by “bullies” who called him fat and “queer” and threw rocks at him outside class. Alito said school officials had ignored the effect of “the severe and prolonged harassment” on the young man.

* In April, he spoke for the appeals court in reopening the asylum request of a Chinese woman who showed evidence she had been forced to have an abortion before fleeing China.

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* In September, Alito ruled for public housing tenants in Philadelphia who said officials had violated their contract by raising their gas rates during the year.

Liberal critics have focused attention on three Alito rulings involving abortion, gun control and search and seizure to make the case that he is an extremist.

On abortion, for example, he wrote a well-publicized dissent in 1991 saying the court should have upheld a Pennsylvania law that generally required married women to tell their husbands when they were going to get an abortion. He did so in attempting to interpret Supreme Court Justice Sandra Day O’Connor’s view that most regulations of abortion do not put an “undue burden” on women. However, when the case reached the high court, O’Connor said a regulation requiring women to notify their husbands did put an undue burden on them.

But four years later, Alito cast the deciding vote to make it easier for poor women to obtain a government-funded abortion. The Clinton administration had told state officials that they must pay for abortions under the Medicaid program if a woman was a victim of rape or incest. Pennsylvania officials said they would not do so unless the women had reported the crime to authorities. In a 2-1 decision, Alito and another judge adopted the Clinton administration’s view, not Pennsylvania’s.

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In 1996, Alito was in the minority when he voted to throw out the conviction of Richard Rybar, a Pennsylvania man found guilty of “unlawful possession” of a machine gun, a federal offense.

“The machine gun case is quite arguably where this nominee shows his most profound break with reasonableness,” said Peter Hamm, a spokesman for the Brady Campaign to Prevent Gun Violence. “On this issue, Judge Alito is far outside the mainstream.”

But Alito’s opinion was based not on the merits of possessing a machine gun, but on his contention that Congress was not authorized to outlaw possession of a gun because mere “possession” did not involve interstate commerce.

Many federal laws, from gun control measures to the Endangered Species Act, are based on Congress’ power to regulate interstate commerce. Conservatives have sought to limit that power.

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In 1995, the Supreme Court took a step in that direction. In a 5-4 ruling, the justices struck down a federal law that made it a crime to “possess” a handgun in a school zone. Chief Justice William H. Rehnquist, backed by O’Connor, said mere possession of a gun was not part of interstate commerce. Selling a gun would be commerce, he added.

Rybar’s conviction was upheld, 2 to 1. The majority said that because these guns could be sold in interstate commerce, they could therefore be banned.

Alito disagreed. “Our responsibility is to apply Supreme Court precedent,” he wrote, not reason around it. He noted that states could prosecute machine gun possession, or that Congress could rewrite the law to show how machine guns affect interstate commerce.

Alito was again in the minority when he sided with police last year when they were sued for having strip-searched a mother and her 10-year-old daughter during a drug raid.

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“The facts of the case are particularly egregious, one in which most people would tend to side with the individuals,” Democratic Senate staffers said in a memo on his key rulings.

The legal dispute in the case of Doe vs. Groody turned on whether a search warrant included the affidavit that police gave to the magistrate who issued it.

In 1998, police in Schuylkill County, Pa., had evidence that a man was running a methamphetamine operation from his house. They submitted an affidavit to a magistrate that detailed the evidence and asked for a warrant to search the house and “all occupants of the residence.” The judge granted the request. The actual warrant referred only to the owner of the house and his address.

When police carried out the raid, a female officer went along. She took the woman and her daughter to an upstairs bathroom. She patted them down and checked to see if they were hiding drugs under their garments. None were found.

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Afterward, “John and Jane Doe” sued the police, contending that the search was unreasonable, a violation of the 4th Amendment. In a 2-1 opinion written by then-Judge Michael Chertoff, the appeals court ruled that the suit should proceed to a jury.

“Searching Jane and Mary Doe for evidence beyond the scope of the warrant and without probable cause violated their clearly established 4th Amendment rights,” the conservative Chertoff said.

Alito disagreed. “There is no doubt that the search warrant application sought permission to search all occupants of the premises,” he wrote. It made no sense to allow a lawsuit against the police for carrying out a search they believed had been authorized by a judge, he said.

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Times staff writer Nicole Gaouette contributed to this report.


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