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Judge Alito, Then and Now

J. Michael Sharman


Column No. 12


January 3, 2006


Judge Alito, Then and Now


Samuel Alito currently is serving a lifetime appointment as a judge on the Third U.S. Circuit  Court of Appeals. He has been a judge on that appellate court since 1990.  This past October, he was nominated for a lifetime appointment to the United States Supreme Court.


On the same day that President Bush picked Judge Alito for the Supreme Court, three Democratic senators hurriedly issued press releases criticizing Judge Alito or calling into question the President's wisdom in nominating him.


Senator Ted Kennedy's official statement said, "There are many serious questions about whether Judge Alito is a mainstream nominee fit to fill the seat of Justice O'Connor…. If confirmed, Alito could very well fundamentally alter the balance of the Court and push it dangerously to the right, placing at risk decades of American progress in safeguarding our fundamental rights and freedoms."


The statement of Senator Patrick Leahy said, "This is a needlessly provocative nomination.  Regrettably, when he could have united the country through his choice, the President chose to reward one faction of his party and risk dividing the country."


Senator Harry Reid wanted the America to know, "I am disappointed in this choice for several reasons. … The President has chosen …yet another federal appellate judge to join a court that already has eight justices with that narrow background. President Bush would leave the Supreme Court looking less like America and more like an old boys club."


After reading those three statements by those important Senate leaders, it certainly comes as a surprise to learn that Senators Ted Kennedy, Harry Reid, and Patrick Leahy all voted for  Samuel Alito in April 1990. In fact, he was unanimously confirmed to his current lifetime position on the Court of Appeals.  Senators Kennedy and  Leahy were even on the Senate Judiciary Committee at the time and Sen. Kennedy, as co-chair of the committee, is the person who presided over Samuel Alito's confirmation hearing.


Back then, the main question for confirmation was whether a nominee was qualified, not whether the potential judge fit into a senator's political worldview. At the time of that first judicial appointment, Mr. Alito was known to be a conservative whose entire professional career had been for either the Reagan or Bush administrations. Despite that, Democratic Senator Bill Bradley, a man who unashamedly describes himself as a liberal, was the senator who recommended Samuel Alito to the Senate Judiciary Committee.


Sen. Bradley told Sen. Kennedy at beginning of that hearing, "You might be interested in a comment Judge Garth, his mentor and soon to be colleague, made about Mr. Alito. When asked to rate Sam on a scale of 1 to 10, he gave him a 16 ½ , which is an indication of high praise from a tough reviewer."


Sen. Kennedy, asked the nominee, "Mr. Alito, you served for 4 years in the Office of the Solicitor General, where you had the opportunity to observe at close range the Supreme Court. Based on your experience there, what  qualities do you believe are most important for an appellate judge?"


Mr. Alito answered him, "I think the most important quality is openmindedness to the arguments that are made by litigants, to pay very close attention to particular facts and law of the case, and not try to pigeon-hole the case or to import a judge's own view of the law into the law that should be applied to the case."


Sen. Kennedy then told him, "Well, I just approve of the commendation. You have obviously had a very distinguished record, and I certainly commend you for a long service in the public interest. I think it is a highly commendable career and I am sure you will have a successful one as a judge."


Perhaps this time around, Sen. Kennedy's Democratic colleagues will follow Mr. Alito's advice to be openminded, and maybe they and Sen. Kennedy will choose to acknowledge Judge Alito's  very distinguished record, highly commendable career, and then vote to move him on to a very successful career as  a Supreme Court justice.