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=== Federalism ===
=== Federalism ===
* A dissenting opinion in ''[[United States v. Rybar]]'', 103 F.3d 273 (3d Cir. [[1996]]), arguing that a U.S. law banning private citizens from owning [[submachine gun]]s was outside the authority of Congress under the [[Commerce Clause]] of the [[U.S. Constitution]] in light of the then recently decided ''[[United States v. Lopez]]''. Although he has not as of yet addressed the point, under the reasoning of this dissent, Judge Alito could not uphold the constitutionality of the Federal Civil Rights Act of 1964.
* A dissenting opinion in ''[[United States v. Rybar]]'', 103 F.3d 273 (3d Cir. [[1996]]), arguing that a U.S. law banning private citizens from owning [[submachine gun]]s was outside the authority of Congress under the [[Commerce Clause]] of the [[U.S. Constitution]] in light of the then recently decided ''[[United States v. Lopez]]''.
* A majority opinion in ''[[Chittister v. Department of Community & Economic Development]]'', 226 F.3d 223 (3d. Cir. 2000), which held that due to [[sovereign immunity]] states could not be [[sued]] under the [[Family and Medical Leave Act]].
* A majority opinion in ''[[Chittister v. Department of Community & Economic Development]]'', 226 F.3d 223 (3d. Cir. 2000), which held that due to [[sovereign immunity]] states could not be [[sued]] under the [[Family and Medical Leave Act]].



Revision as of 20:35, 29 November 2005

Samuel A. Alito, Jr.

Samuel Anthony Alito Jr. (born April 1, 1950) is a judge on the United States Court of Appeals for the Third Circuit. On October 31, 2005, President George W. Bush nominated him to the position of Associate Justice of the United States Supreme Court, to replace retiring Justice Sandra Day O'Connor.

Personal life

Standing in front of a portrait of former President Bill Clinton, Martha Alito (right), daughter Laura (left) and son Philip (center) look on as President Bush announces Samuel Alito's nomination on October 31, 2005
File:Alitocollege.jpg
Alito in the 1972 Princeton yearbook: "Sam intends to go to law school and eventually to warm a seat on the Supreme Court."

Alito was born in Trenton, New Jersey to Samuel A. Alito Sr., an Italian immigrant, and his wife, the former Rose Fradusco. He attended Steinert High School in Hamilton, New Jersey. He graduated from Princeton University with an A.B. in 1972, and attended Yale Law School, where he served as editor on the Yale Law Journal and earned a J.D. in 1975. Alito's father, who is now deceased, was a high school teacher and then became the first Director of the New Jersey Office of Legislative Services, a position he held from 1952 to 1984. Alito's mother is a retired schoolteacher. Alito's sister, Rosemary, is regarded as one of New Jersey's top employment lawyers.

At Princeton, Alito led a student conference in 1971 called "The Boundaries of Privacy in American Society" which, among other things, supported curbs on domestic intelligence gathering; called for the legalization of sodomy; and urged for an end to discrimination against homosexuals in hiring by employers. [1]. During said conference, Alito stated that "no private sexual act between consenting adults should be forbidden." Additionally, as a November 2005 Daily Princetonian article points out, Alito also was part of the Concerned Alumni of Princeton which formed in 1972, the year he graduated. [2] Although CAP had an innocuous-sounding name, it disguised a less benign agenda that included preventing women and minorities from entering the ivy league institution. The executive committee of CAP published a statement in December 1973 that affirmed unequivocally, "Concerned Alumni of Princeton opposes adoption of a sex-blind admission policy." A 1983 essay in CAP's magazine Prospect, entitled "In Defense of Elitism", explained: "Everywhere one turns blacks and hispanics are demanding jobs simply because they're black and hispanic, the physically handicapped are trying to gain equal representation in professional sports, and homosexuals are demanding that government vouchsafe them the right to bear children." By 1985, thirteen years after his Princeton graduation, Altio continued to tout his membership in the conservative group while readying his job application for the Reagan Administration. [3]

While a sophomore at Princeton, Alito received the (low) lottery number of 32, in a Selective Service drawing on December 1, 1969. In 1970, he became a member of the school's Army ROTC program, attending a six-week basic summer camp that year at Fort Knox, Kentucky, in lieu of having been in ROTC during his first two years in college. He was commissioned as a Second Lieutenant in the Signal Corps after his graduation from college in 1972, assigned to the Army Reserve, one of nine in his class to receive a commission in the Army Reserve. Following his graduation from Yale Law School in 1975, he served on active duty from September to December, 1975, while attending the Officer Basic Course for Signal Corps officers at Fort Gordon, Georgia. The remainder of his time in the Army was served in the inactive Reserves. He had the rank of Captain when he received an Honorable Discharge in 1980.[4][5]

Since 1985, Alito has been married to the former Martha-Ann Bomgardner, once a law librarian with family roots in Oklahoma. They live in West Caldwell, New Jersey and have two children: Philip and Laura.

According to the The Washington Post, Judge Alito's friends describe him as "a studious, diligent, scholarly judge with a first-rate mind and a deadpan sense of humor, a neutral arbiter who does not let personal beliefs affect his legal judgments." [6]

Career

File:Alitobw.jpg
Alito upon his induction as a U.S. Third Circuit Court of Appeals judge, 1990

Alito argued twelve cases before the Supreme Court for the federal government during his tenure as assistant to the Solicitor General. While serving as an attorney for New Jersey, he prosecuted many cases that involved drug trafficking and organized crime. [7]

In his 1985 application for Deputy Assistant to the Attorney General, Alito espoused his conservative views, naming William F. Buckley, Jr., the National Review, Alexander Bickel, and Barry Goldwater's 1964 campaign as major influences. He also expressed concern about Warren Court decisions in the areas of criminal procedure, the Establishment Clause, and reapportionment. He stated he was proud to prepare cases arguing that "racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion." [8]

Alito was nominated by George H. W. Bush on February 20, 1990 to the United States Court of Appeals for the Third Circuit. Alito was rated by the American Bar Association as “Well Qualified” at the time of his nomination. He was confirmed unanimously by voice vote in the Senate on April 27, 1990[9]. Many Republicans as well as Democrats praised Alito. Sen. Ted Kennedy (D-MA) commented at the time that Alito had a "very distinguished record." His chambers are in Newark, New Jersey.

As adjunct professor at Seton Hall University School of Law, Alito has taught courses in Constitutional Law and an original course on terrorism and civil liberties. In 1995, Judge Alito was presented with that law school’s Saint Thomas More Medal, "in recognition of his outstanding contributions to the field of law." [10]

He is known for his judicially conservative rulings. In one of his most well-known opinions, he dissented in a 2–1 decision in Planned Parenthood v. Casey in 1991. In that case, he voted to uphold a Pennsylvania law that required women to inform their husbands before having an abortion, noting that the law allowed certain exceptions, such as an abusive spouse. The Supreme Court struck down the law in 1992. In another case involving a warrant, Judge Alito took the dissenting viewpoint which allowed the unauthorized strip search of a mother and her 10 year old daughter in their home although the warrant did not name them. Lawrence Lustberg, a criminal defense attorney and friend of Alito, says that he is "very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a Rehnquist as a Scalia trait." [11]

Nomination to U.S. Supreme Court

Samuel Alito acknowledges his nomination on October 31, 2005, with President George W. Bush looking on.

Alito is the third nominee to Justice Sandra Day O'Connor's seat, which she will not vacate until a replacement is confirmed. Following O'Connor's announcement, on July 1, 2005, that she would retire, it was widely reported that Alito had been narrowly passed over as her replacement; President Bush instead nominated John Roberts, who was then re-nominated to fill William Rehnquist's post following the Chief Justice's death on September 3, 2005. On October 3, White House counsel and Bush confidante Harriet Miers was nominated to fill O'Connor's spot. Miers withdrew her acceptance of the nomination on October 27 after encountering wide-spread opposition.

Bush nominated Alito to the position of Associate Justice of the Supreme Court on October 31, 2005. If confirmed by the Senate, Alito would be the eleventh Catholic to serve on the Supreme Court (the others being Roger Taney, Edward White, Joseph McKenna, Pierce Butler, Frank Murphy, William J. Brennan, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and John Roberts) and the fifth on the current Court (along with Chief Justice Roberts and Associate Justices Scalia, Kennedy, and Thomas), creating the first majority-Catholic Supreme Court in history, and together with the two Jewish justices (Ruth Bader Ginsburg and Stephen Breyer), a court with the most religious minorities (7 of 9 justices).

In announcing his nomination, Bush stated, "He's scholarly, fair-minded and principled and these qualities will serve him well on the highest court in the land. [His record] reveals a thoughtful judge who considers the legal merits carefully and applies the law in a principled fashion. He has a deep understanding of the proper role of judges in our society. He understands judges are to interpret the laws, not to impose their preferences or priorities on the people." [12] Alito, in accepting the nomination, said, "Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system. And I pledge that if confirmed I will do everything within my power to fulfill that responsibility." [13]

Reaction to the nomination

In general, initial reaction to Alito's nomination was strongly positive from conservative and Republican Party commentators, and generally negative from liberals and Democratic Party members.

File:Altiolindseygraham.jpg
Alito meets with Senator Lindsey Graham (R-SC).

Many Democrats have voiced opposition to his nomination to the Supreme Court. Senate Minority Leader Harry Reid (D-NV), who had publicly supported Miers' nomination, made a statement saying, "Conservative activists forced [Harriet] Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people." [14] Reid also stated that Alito's nomination "would create a lot of problems." [15] Ted Kennedy (D-MA) said that Alito's nomination is "based on weakness, not strength." [16] Senator John Kerry (D-MA) released a statement saying that, "Every American should be deeply concerned that the far right wing which prevented Harriet Miers from even receiving a Senate hearing is celebrating Judge Alito’s nomination and urging the Senate to rubber stamp the swing vote on our rights and liberties." [17] Ralph Neas, president of the group People For the American Way, said that "President Bush put the demands of his far-right political base above Americans' constitutional rights and legal protections." Senator Ben Nelson (D-NE) disagreed with other Democrats on Alito's nomination, saying that Alito would not "hammer away and chisel away" exisiting law. [18]

Supporters of the president counter Democratic opposition by arguing that what senator Kerry characterizes as the "far right wing" is a key segment of American society that deserves an equal voice and equal representation. They point out that President Bush promised those who would vote for him that he would appoint a justice to the Supreme Court that would be a so-called strict constructionist, and now he is fulfillling his campaign promise.

Alito was confirmed unanimously to the 3rd U.S. Circuit Court of Appeals in Philadelphia in 1990. Some Democrats, such as Senator Kennedy, who praised Alito during that confirmation process now oppose his nomination to the Supreme Court. They claim this is because 15 years of judicial rulings and opinions have changed their view of him.

NARAL Pro-Choice America, a group favoring legal abortion, said that the nomination of Alito would threaten "fundamental freedoms, including a woman's right to choose." The National Pro-Life Action Center, which supports prohibitions on abortion, said that Alito's "record clearly demonstrates a judicial philosophy that respects and defends the civil rights of all Americans born and unborn."

Reaction from Republicans has been more positive than that following Miers' nomination. Senator Orrin Hatch (R-UT) commented that, "President Bush has hit a home run by selecting Sam Alito." [19] Senator Sam Brownback (R-KS) also voiced his support: "I commend the president and congratulate Judge Alito on this nomination." [20]

Likewise, reaction from usually Republican aligned interest groups has largely been positive, with Progress for America already launching a televised ad lauding his nomination. [21] The group commented: "No one can argue that Judge Alito is anything but extremely well qualified for the Court and his unanimous confirmation to the Third Circuit Court of Appeals will undermine any attempt by liberals to argue that he is a ideologue." [22]

Some politicans have called for both sides to wait until Senate hearings begin before supporting or opposing Alito's nomination. Senator Dianne Feinstein (D-CA), who voted against Roberts when he was nominated for Chief Justice, said, "I would hope that people on both sides would hold their fire, allow the Judiciary Committee to do its work, and not take a position until that work is completed." [23]

Case history

LexisNexis reports that Alito has written more than 700 opinions.

Abortion

  • Samuel Alito supported limited abortion rights in 3 out of 4 rulings as described below. [24]
  • A dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), arguing that a Pennsylvania law that required women seeking abortions to inform their husbands should have been upheld. Judge Alito wrote:
"[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems — such as economic constraints, future plans, or the husbands' previously expressed opposition — that may be obviated by discussion prior to the abortion." He added some exceptions: "These exceptions apply if a woman certifies that she has not notified her husband because she believes [FN4] that (1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her."
The Supreme Court ruled against Alito's position in a plurality decision, in which five justices ruled that a parental notification requirement violated the woman's rights. Rehnquist's dissent quoted Judge Alito and expressed support for his reasoning.
  • A majority opinion in Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127 (3rd Cir. 2000), [25] in which Judge Alito recognized that a New Jersey law banning intact dilation and extraction (commonly called "partial-birth abortion") was unconstititional in light of the then recent Supreme Court case of Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), which struck down a nearly identical law in Nebraska.
  • In 1995, voted to strike down an abortion restriction in a Pennsylvania law that required women seeking to use Medicaid funds to abort a pregnancy resulting from rape or incest to report the incident to law enforcement officials and identify the offender.
  • Ruled the Constitution does not afford protection to the unborn in a 1997 challenge to a New Jersey law that prevents parents from suing for damages on behalf of the wrongful death of a fetus.

Federalism

First Amendment

  • A majority opinion in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) [26], holding that the public school district's anti-harassment policy, which prohibited harassment based on sexual orientation among other criteria, was unconstitutionally overbroad and therefore violated First Amendment guarantees of free speech. Alito wrote: No court or legislature has ever suggested that unwelcome speech directed at another's 'values' may be prohibited under the rubric of anti-discrimination.
  • A dissenting opinion in Banks v. Beard, 399 F.3d 134 (3d Cir. 2005), arguing that the prison policy prohibiting inmates of a segregated unit from accessing news media or family photographs was not a violation of the First Amendment. Alito reasoned:[27]
[T]here is a "rational" relationship between that restriction and the legitimate penological objective of deterring misconduct. It is "rational" for corrections officials to think that inmates who are not in Level 2 will be deterred from engaging in serious misconduct because they do not want to be transferred to that unit and thus to be subjected to the restrictions that accompany that assignment. It is also "rational" for corrections officials to think that inmates who are in Level 2 will be deterred from engaging in serious misconduct while in that unit because they wish to be transferred out and thus to escape such restrictions.
  • A majority opinion in Child Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004) involving the Establishment Clause. The court found that a school district could not preclude an evangelical group from distributing its newsletters where the school district permitted other private groups to do the same.
  • A majority opinion in Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004), involving the Free Exercise Clause. The case involved a Native American's ritual that used black bears. The state denied the plaintiff an exemption to a $200/year exotic wildlife dealer permit to keep the bears under the state's Game and Wildlife Code. The court found that the code invoked strict scrutiny. The majority found the code was "substantially" under-inclusive and did not satisfy strict scrutiny.
  • A majority opinion [28] in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999), addressing the circumstances under which a government-sponsored holiday display may or may not contain religious symbols. The case held that a holiday display consisting solely of religious symbols was impermissible, but a mixed display including both secular and religious symbols was permissible if balanced in a generally secular context. The decision relied on a previous Supreme Court decision that had permitted such mixed displays. The ACLU had argued that a previous city display that was ruled unconstitutional because it lacked secular symbols colored the purpose of the new display.
  • A dissenting opinion in C.H. v. Oliva et al. (3rd Cir., 2000)[29] arguing that the removal and subsequent replacement in "a less conspicuous spot" of a kindergartener's religious themed poster was, at least potentially, a violation of his right to Free Expression
  • A unanimous opinion in Police v. City of Newark, 1999; [30] allowing Muslim police officers in Newark to keep their beards because "the Department makes exemptions from its policy for secular reasons and has not offered any substantial justification for refusing to provide similar treatment for officers who are required to wear beards for religious reasons."
  • A unanimous opinion in The Pitt News v. Pappert, 2004, [31] upholding the right of student newspapers to carry alcohol advertisements on First Amendment grounds. "If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment. "

Harassment and discrimination

  • A majority opinion in Williams v. Price, 343 F.3d 223 (3d Cir. 2003), [32] granting a writ of habeas corpus to a black state prisoner after state courts had refused to consider the testimony of a witness who stated that a juror had uttered derogatory remarks about blacks during an encounter in the courthouse after the conclusion of the trial.
  • A dissenting opinion in Sheridan v. Dupont, 74 F.3d 1439 (3d Cir. 1996)(en banc). [33]. Alito would have required a plaintiff to meet a higher standard of evidence to survive a motion for summary judgment in a sex discrimination case, agreeing with a ruling by the 5th Circuit. Alito earlier wrote the majority opinion when the case was heard before a three-judge panel, [34] expressing a preference for the 5th Circuit's reasoning, but ruling according to 3rd Circuit precedent.
  • A dissenting opinion in Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997), [35] arguing that, when a Marriott housekeeping manager sued Marriott over being allegedly denied promotion on the basis of race, summary judgment in favor of the defendant was appropriate because the plaintiff had not presented enough evidence to allow a reasonable jury to conclude that every one of the reasons Mariott offered for having promoted someone else was a mere pretext. The majority responded that finding in favor of Marriott would have protected racist employers by “immuniz[ing] an employer from the reach of Title VII if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias.”

Other case decisions

  • A majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), rejecting an Iranian woman's petition for review of a deportation ruling and denying her asylum in the U.S. in spite of her gender and feminist ideas and the human rights issues in her home country. The opinion did establish, however, that women in slightly different situations might be able to establish an asylum claim if they would absolutely refuse to wear Islamic dress and would face death as a result.
  • A majority opinion in Shore Regional High School Board of Education v. P.S., 381 F.3d 194 (3d Cir. 2004) [36], reinstating an administrative law judge's ruling in favor of parents who claimed the school system's failure to protect their child from bullying justified their placing him in a different high school.
  • A dissenting opinion in Homar v. Gilbert, 89 F.3d 1009 (3d Cir. 1996), arguing that a state university need not hold a hearing before suspending a campus policeman without pay after he had been arrested on drug charges. The Supreme Court later agreed with Alito.
  • A majority opinion in Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004), [37] a copyright case discussing the issue of originality. Alito held that "the creative spark... utterly lacking in [a part's numbering system, and thus] these numbers are examples of works that fall short of the minimal level of creativity required for copyright protection."
  • A majority opinion in United States v. Lee, 359 F.3d 194 (3rd Cir. 2004). Alito rejected a defendant's argument that his Fourth Amendment rights were violated by the introduction into evidence of a videotape recording of a meeting with an informant who consented to the videotaping.
  • In a dissent to Doe v. Groody, Alito argued that qualified immunity should have protected police officers from a finding of having violated constitutional rights when they strip-searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized the search of a residence. The mother and daughter were not referred to in the warrant, although the affidavit with the warrant requested permission to "search all occupants of the residence and their belongings". The court's opinion found that the warrant did not grant such permission, arguing that references to the affidavit in the Warrant were specific and the omission of the language in question from the warrant was not found to be the result of an error, clerical or otherwise.[38]

Conflict of interest question

  • In an article on November 1, 2005, The Washington Post raised the possibility of a conflict-of-interest claim against Alito. In 2002, he upheld a lower court's dismissal of a lawsuit filed against the Vanguard Group. Alito had investments with the mutual fund company at the time. When notified of the situation, Alito denied doing anything improper but recused himself from further involvement in the case [39]. After the Post article was printed, various legal scholars came forward to dismiss any claim of impropriety on Alito's part and defended his participation in the case [40][41][42]. On November 10, Judge Alito wrote Senator Specter, the chairman of the Senate Judiciary Committee, explaining his participation in the case [43].

Trivia

  • Those who compare his ideology to that of conservative Supreme Court Justice Antonin Scalia have nicknamed him "Scalito" (a portmanteau of "Scalia" and "Alito" that appears to have originated in a 1992 National Law Journal article). Philadelphia journalist Shannon P. Duffy claims to have coined the nickname. [44] The National Italian American Foundation, a bipartisan organization that has supported the San Francisco liberal Nancy Pelosi [45], has stated the use of the "Scalito" nickname "marginalizes [Alito's] outstanding record," implying that the nickname makes an issue of Alito's ethnicity.[46] Left wing blogs have questioned NIAF's chairman Ken Ciongoli's objectivity, noting his support for the Republican Party. Although his donations have been heavily weighted in favor of Republicans, he has also donated to a Democratic candidate, and the press release was issued by NIAF, not Ciongoli. [47]
  • Sean Scully of Time Magazine argues what he calls the "derisive nickname," "Scalito," is also factually incorrect. He cites only one case, not a systematic survey of the two judges' opinions: Alito's ruling in a case involving the Social Security claim of a disabled elevator operator. Alito voted with the 3rd Circuit majority for her claim. The Supreme Court, with Justice Scalia voting with the majority, overturned his decision.[48] Harvard Law Professor Charles Fried said in an interview on National Public Radio's Morning Edition (November 1, 2005) that "Comparisons to Scalia are overblown. He is conservative, yes, but he is not radically conservative like Scalia."
  • On October 31, 2005, MSNBC host Chris Matthews, a former speechwriter for Jimmy Carter and former top aide to Democrat Speaker of the House Tip O'Neill, called a Democratic talking points memo criticizing Alito "a pretty disgusting document" when speaking to MSNBC daytime host Lisa Daniels. The memo [49] criticized Alito for, among other things, failing to convict 20 members of the Mafia, specifically the Lucchese crime family, during a prosecution. Matthews claimed that the memo was an ethnic slur against Alito, who is Italian-American. However, the memo does not mention or allude to Alito's ethnicity. [50] (video 6:16) [51] (video, 9 minutes)
  • Has a blend of coffee named after him at T.M. Ward Coffee Co. in downtown Newark. "Judge Alito's Bold Justice Blend" is a mix of Colombian, Java and New Guinea with a bit of espresso, and was created by his clerks, who wanted to do something special for the judge. [52]
  • When Samuel Alito graduated from Princeton University in 1972 at age 22, his yearbook said he hoped to "eventually warm a seat on the Supreme Court." [53]
  • The Los Angeles Times said "Alito's record defies labels...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" [54] and provided examples of what might be considered liberal rulings in a editorial on November 7, 2005.
  • "Of course he's against abortion," Samuel Alito's 90-year-old mother Rose told reporters at her home just after the nomination was announced. [55]

References