Record holds hints on nominee's views
By Joan Biskupic, USA TODAY
Supreme Court nominee Samuel Alito's precise legal views are not clear on many issues, but his work as a government lawyer and as a judge offers some clues:
• Abortion rights.
As an assistant to the U.S. solicitor general in the 1980s, Alito helped devise a strategy for restricting Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion nationwide.
Then, in a 1985 job application for another government post, Alito said he was "particularly proud" of crafting arguments that said "the Constitution does not protect a right to abortion." As an appellate judge in 1991, he wrote an opinion endorsing a Pennsylvania law that required women to tell their husbands before obtaining an abortion. When the case arrived at the Supreme Court, Justice Sandra Day O'Connor — whom Alito would replace — was instrumental in writing the decision that struck down the spousal-notification law as an "undue burden" on a woman's right to end a pregnancy.
• Federal power.
In a 1996 case decided by his appeals court, Alito wrote a dissenting opinion in which he said Congress exceeded its power to regulate interstate commerce when it banned possession of machine guns. His reasoning broadly interpreted a Supreme Court ruling from a year earlier, United States v. Lopez, that curbed federal power. In unusually bold rhetoric, Alito wrote, "Was United States v. Lopez a constitutional freak? Or did it signify that the (Constitution's) Commerce Clause still imposes some meaningful limits on congressional power?" His view — which often has been rejected by lower courts — would limit Congress' ability to pass regulations in areas ranging from public safety to the environment.
• Presidential authority.
Alito has endorsed broad powers for the executive branch. This is a relatively new area of concern for some senators because of recent disclosures about the Bush administration's domestic wiretapping as part of its anti-terrorism strategy. In a 1984 memo, Alito said the attorney general should be immune from lawsuits alleging illegal wiretapping.
"This position (from 1984) suggests that Judge Alito would not question the president's assertion of the right to spy on Americans without obtaining a court order," says Sen. Ted Kennedy, D-Mass.
• Job discrimination and civil rights.
In 1997, Alito dissented from a majority opinion that said an African-American hotel employee who alleged she had been denied a promotion because of her race could bring a case. The appeals court's majority said that if Alito's view had been adopted, the federal anti-bias law known as Title VII "would be eviscerated."
Kennedy and other senators have expressed concerns about Alito's criticism of voting rights decisions intended to equalize power across the country, including between whites and blacks. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has said he would ask Alito how much consideration state legislatures can give to the race of voters as voting districts are drawn.
• Police power.
Federal judges routinely must determine the remedies for people who have been victims of police wrongdoing.
In 2004, Alito dissented as his fellow appeals court judges faulted police for a search of a mother and 10-year old daughter who were at the scene of a drug investigation but who were not named in the search warrant. A female police officer had taken the mother and child to a bathroom and asked them to lift their shirts, drop their pants and turn around.
The majority opinion in the case was written by Judge Michael Chertoff, now director of Homeland Security. Chertoff wrote, "It is difficult to conceive how the search of a 10-year-old child in these circumstances could be justified."
• Defendants' rights.
Alito has said he developed an interest in constitutional law in college, "motivated in large part by disagreement with Warren Court decisions."
A hallmark of the Supreme Court under Chief Justice Earl Warren (1953-69) was boosting protections for defendants, including those interrogated by police or facing the death penalty. In a 2004 case, Alito's opinion upheld the death penalty for Ronald Rompilla, a convicted killer who claimed his trial lawyers had been ineffective.
Last year, the Supreme Court reversed Alito's opinion. The court, with O'Connor in the majority, said Rompilla's attorneys failed to present evidence concerning his troubled childhood and mental illness.
