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Samuel Alito

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Samuel A. Alito, Jr.

Samuel Anthony Alito Jr. (born on 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.

For more information on his Supreme Court nomination and hearings see: Samuel Alito Supreme Court nomination

Personal life

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., and his wife, the former Rose Fradusco. A member of the Roman Catholic Church and the Our Lady of the Blessed Sacrament Parish in Roseland, Alito attended Steinert High School in Hamilton, New Jersey. He graduated from Princeton University's Woodrow Wilson School of Public and International Affairs 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."

Alito was a member of the Concerned Alumni of Princeton which formed in October 1972 in protest of the University's commitment to coeducation and admission of students to the Ivy League school under a race-based affirmative action program. [2] CAP published a statement in December 1973 that opposed "adoption of a sex-blind admission policy." The matter of his involvement was reviewed before and during his confirmation hearing. It was discovered that he had little to no sustained involvement with the group [3]. Yet in 1985, thirteen years after his Princeton graduation, Alito listed his membership in the conservative group in his job application to the Reagan Administration [4]. However, Alito has distanced himself from the Concerned Alumni group, saying that he doesn't remember being a part or anything about it. The group has been criticized as extreme, even in a report from Princeton alumnus and U.S. Senate majority leader Bill Frist. Apart from Alito's written 1985 statement of membership of CAP on a job application, which Alito says was truthful, there is no other evidence of Alito's involvement with or contributions in the group.

Alito's opponents claim affiliation with Concerned Alumni of Princeton is evidence of an extreme conservative ideology. Alito supporters including Andrew Napolitano and Laura Ingraham, both prominent former members of CAP, say that the organization followed mainstream conservative principles in opposing affirmative action and supporting the ROTC's return to Princeton. The ROTC issue was cited by Alito in his Supreme Court confirmation hearings, and frequently by supporters of his nomination, as a possible explanation for Alito's CAP membership. Although the ROTC was banned during part of Alito's undergraduate years, it was restored to campus in September 1972 before the founding of Concerned Alumni of Princeton, and has remained on campus since. According to an investigation by the Daily Princetonian, "between its inception [in October 1972] and its last issue in 1985, Prospect [CAP's newsletter] rarely examined on-campus military activities." [5]

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. Graduating in 1972, Alito left a sign of his lofty aspirations in his yearbook, which said that he hoped to "eventually warm a seat on the Supreme Court."[6]

He was commissioned as a Second Lieutenant in the Signal Corps after his graduation and 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 [7][8].

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

Since 1985, Alito has been married to 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.

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." [9]

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 [10].

In his 1985 application for Deputy Assistant to the Attorney General, Alito espoused conservative views, naming William F. Buckley, Jr., the National Review, Alexander Bickel, and Barry Goldwater's 1964 presidential 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." [11]

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 by unanimous consent in the Senate on April 27 1990 [12]. As a Third Circuit judge, 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." [13]

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. In a 6-3 vote, the Supreme Court struck down the law in 1992. In another case, Alito's dissent found it lawful for law enforcement officers in possession of a valid search warrant to stripsearch persons on the premises who were identified in the officers' attached affidavit, but not in the warrant itself (in this case a woman and 10 year old girl). 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." [14]

Nomination to U.S. Supreme Court

Samuel Alito acknowledges his nomination, with President George W. Bush looking on.
Main article: Samuel Alito Supreme Court nomination

President Bush nominated Alito to the position of Associate Justice of the Supreme Court on October 31 2005. Alito is the third nominee to Justice O'Connor's seat, which she has said 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. 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 widespread opposition.

Alito was initially interviewed for a potential appointment in 2001, by then-White House Counsel Alberto Gonzales. He was again interviewed on May 5, 2005 by Vice President Dick Cheney, Gonzales (now Attorney General), White House Chief of Staff Andrew Card, Karl Rove, Miers, and Cheney's chief of staff I. Lewis Libby. Bush interviewed him in person on July 14, 2005 [15].

In announcing Alito's 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." [16] 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." [17]

Judge Alito has been unanimously rated "well qualified" to fill the Associate Justice post by the American Bar Association's Standing Committee on Federal Judiciary. The committee rates judges as "qualified," "not qualified," or "well qualified." [18] The ABA rating is meant to measure judicial temperament, not whether a judge's rulings will follow public opinion.

On January 26, 2006, US Senator and 2004 Presidential candidate John Kerry called for a fillibuster against Judge Alito, which would prolong debate and effectively stall the confirmation process. Although backed by his colleague Ted Kennedy, the filibuster appears unlikely to move forward despite many Democratic senators' objections to Alito's candidacy. Kerry has defended his decision by stating on his website "the American people know Judge Alito will take our country in the wrong direction, and they expect something to be done about it." [19]

Case history

LexisNexis reports that Alito has written more than 700 opinions.

Abortion

  • 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:
"The plaintiffs failed to show even roughly how many of the women in this small group [those married women who choose not to inform their husbands] would actually be adversely affected by Section 3209. As previously noted, Section 3209 contains four significant 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. If Section 3209 were allowed to take effect, it seems safe to assume that some percentage of the married women seeking abortions without notifying their husbands would qualify for and invoke these exceptions. The record, however, is devoid of evidence showing how many women could or could not invoke an exception." [20]
The Supreme Court ruled against Alito's position in a plurality decision, in which five justices ruled that a spousal notification requirement violated the woman's rights. Chief Justice Rehnquist's dissent quoted 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), [21] in which Judge Alito recognized that a New Jersey law banning intact dilation and extraction (commonly called "partial-birth abortion") was unconstitutional 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) [22], 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:[23]
[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 [24] 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 County of Allegheny v. ACLU - 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)[25] 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; [26] 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, [27] 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), [28] 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). [29]. 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, [30] 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), [31] arguing that, when a Marriott housekeeping manager sued the hotel chain 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) [32], 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), [33] 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 majority 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 was not found to be the result of an error, clerical or otherwise.[34] This controversial opinion earned Judge Alito the nickname "Strip-Search Sammy" from his detractors.
  • A defendant who claimed he could not pay his $2.5M debt to his wife was indefinitely imprisoned by a Pennsylvania court. This decision was upheld by the (3d Cir. 2002). Alito wrote the unanimous opinion in Chadwick v. Janecka there is "no federal constitutional bar to Mr. Chadwick's indefinite confinement." [35]

Issues Raised in Confirmation Hearings

Conflict of interest question

On a questionnaire for the Senate Judiciary Committee during the confirmation process for the Third Circuit Court of Appeals in 1990, Alito said he would avoid a conflict of interest by not voting on cases involving First Federal Savings & Loan of Rochester, New York, Smith Barney, or Vanguard Group because he had accounts with them. However, in 2002 Alito upheld a lower court's dismissal of a lawsuit filed against multiple investment company defendants, including Vanguard Group. When notified of the situation, Alito denied doing anything improper but recused himself from further involvement in the case. The case was reheard with the new panel coming to the same conclusion.

On November 10, Alito wrote to Senator Arlen Specter, the chairman of the Senate Judiciary Committee, explaining his participation in the case [36]. He said that when he had originally listed Vanguard and Smith Barney in 1990, "my intention was to state that I would never knowingly hear a case where a conflict of interest existed. [...] As my service continued, I realized that I had been unduly restrictive."

During witness testimony of Alito's confirmation hearings witness John Payton (member of the American Bar Association's Standing Committee on Federal Judiciary) testified "In the end, he did acknowledge that it was his responsibility that a mistake and error had been made. Those cases should have been caught and he should have not heard those cases."

Views on the unitary executive theory

Main article: Unitary Executive theory

In his confirmation hearings in January 2006, he was repeatedly asked about his views on the Unitary Executive theory. He said:

"As I understand the concept, it is the concept that the president is the head of the executive branch. The Constitution says that the president is given the executive power.
And the idea of the unitary executive is that the president should be able to control the executive branch, however big it is or however small it is, whether it's as small as it was when George Washington was president or whether it's big as it is today or even bigger.
It has to do with control of whatever the executive is doing. It doesn't have to do with the scope of executive power. It does not have to do with whether the executive power that the president is given includes a lot of unnamed powers or what's often called inherent powers.
So it's the difference between scope and control. And as I understand the idea of the unitary executive, it goes just to the question of control; it doesn't go to the question of scope." (Transcript of hearing Tuesday, January 10, 2006)

Nevertheless, based upon Alito's previous statements, opponents, through many editorials,[37] have expressed their fear he will not uphold the separation of powers as intended by the Constitution.[38] They believe he will support the Bush administration in its interpretation of the Unitary Executive, which they claim is that as Commander-in-Chief the President can not be restrained by law, national or international.[39]

Use of International Law

In response to a question from Senator Kyl (R - Arizona) concerning use of international law in supreme court decisions, Judge Alito stated:

"I don't think that foreign law is helpful in interpreting the Constitution. Our Constitution does two basic things. It sets out the structure of our government and it protects fundamental rights. The structure of our government is unique to our country, and so I don't think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government. As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents. Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human -- in fact, I don't think there were any that protected human rights the way our Bill of Rights did." (Transcript of hearing Tuesday, January 10, 2006)
  • Legal Memo written while working in the Solicitor General's office regarding the Fleeing Felon Rule. [40] (May 18, 1984) (PDF)
  • ‘Personal Qualifications Statement’ when applying to be an Assistant Attorney General under Pres. Ronald Reagan. [41] (Nov. 15, 1985)
  • Legal Memo written as Deputy Asst. Attorney General to the OMB’s General Counsel regarding OMB authority of FDIC funds. [42] (1986) (PDF)
  • House Committee on the Judiciary testimony regarding unpublished court opinions. [43](1990) (PDF)
  • 2003 Financial Disclosure [44]
  • 2004 Financial Disclosure [45]
  • Response to a Senate Judiciary Committee questionnaire [46](Nov. 30 2005) (PDF), (Appendix1 Appendix2 Appendix3 Appendix4)

Zusätzliche Informationen

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). The National Italian American Foundation, a bipartisan organization that has supported Nancy Pelosi [47], has stated the use of the "Scalito" nickname "marginalizes [Alito's] outstanding record." [48]

If confirmed by the Senate, Alito would be the eleventh Catholic to serve on the Supreme Court 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. See also: Demographics of the Supreme Court of the United States.

He is a member in good standing of the Federalist Society, a group of conservatives and libertarians dedicated to "reforming the current legal order."

See also

Notes

  1. ^ "Alito joined conservative alumni group", Daily Princetonian, November 18, 2005
  2. ^ "Alito needs to shed his CAP", Daily Princetonian, November 22, 2005
  3. ^ "Alito has a record of steady conservatism, reputation for civility", Chicago Tribune, October 31, 2005
  4. ^ "The appeals court judge is a contender", Philadelphia Inquirer, July 3, 2005
  5. ^ "Alito's conservatism gives Senate clear choice", MSNBC.com, October 31, 2005
  6. ^ Alito's statements
  7. ^ Trias Politica
  8. ^ Possible view Bush administration

References


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