A review of Alito's writing -A very conservative Judge

Review of Alito's opinions finds clear pattern
By Stephen Henderson and Howard Mintz
Knight Ridder Newspapers

WASHINGTON (KRT) - During his 15 years on the federal bench, Supreme Court nominee Samuel Alito has worked quietly but resolutely to weave a conservative legal agenda into the fabric of the nation's laws.

A Knight Ridder review of Alito's 311 published opinions on the 3rd Circuit Court of Appeals - each of singular legal or public policy importance - found a clear pattern. Although Alito's opinions are rarely written with obvious ideology, he's seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big businesses.

Despite the intense focus on whether Alito would cast the decisive vote to overturn Roe v. Wade, he has had scant opportunity as a judge to address the issue. As a young lawyer in the Reagan administration in 1985, he did advocate overturning the landmark abortion ruling. But it's his record in matters that routinely come before the Supreme Court that suggests he's likely to be more reliably conservative than Sandra Day O'Connor, the justice he would replace.

Liberal and conservative supporters alike describe the quiet, scholarly Alito as a restrained judge who follows the law, not his personal beliefs. Those who've worked closely with him, including former law clerks and fellow judges, say they can't think of a case in which he took a partisan political stance.

"As you can probably glean from his opinions, he's a conservative," said former 3rd Circuit Judge Timothy Lewis, a more liberal judge who served with Alito from 1992 to 2000 and supports the nomination. "I'm very comfortable with his judicial philosophy, though it was very different than mine. It only works if the judge doesn't have an agenda. He is not result-oriented."

Alito's voluminous judicial record, however, puts him among the nation's most conservative judges.

"Alito is more conservative than O'Connor; this isn't a hard question," said Rory Little, a Hastings College of the Law professor in San Francisco and a former Supreme Court clerk who praised Alito's credentials. "This isn't a guy who is going to vote in a way that will make anybody on the left happy."

A review of Alito's work on dozens of cases that raised important social issues found that he rarely supports individual rights claims.

The primary exception has been his opinions about First Amendment protections. Alito has been a near free-speech absolutist in his writings, and he's been equally strong on protecting religious freedoms.

But even some of his First Amendment opinions underscore the bent in the rest of his work. He hasn't strictly enforced church-state separation, and his love of the First Amendment seems to stop at the prison walls. He has written opinions that would deny prisoners access to reading materials and curtail their rights to practice their religious beliefs.

In other areas, Alito often goes out of his way to narrow the scope of individual rights, sometimes reaching out to undo lower-court rulings that affirmed those rights.

In one notable ruling, Alito snatched a lower-court victory from a group of diabetic inmates who alleged their jailers didn't adequately treat their illness.

Alito has been particularly rigid in employment discrimination cases.

Many conservative jurists set a high bar for plaintiffs who allege racial, gender or age bias in the workplace, but Alito has seldom found merit in a bias claim.

He has written in at least 18 discrimination cases and has sided with plaintiffs four times, including once when white police officers claimed that Pittsburgh's affirmative action policy unfairly disadvantaged them and another time when a mentally disabled grocery store worker was fired.

Alito also sided with a disabled New Jersey police dispatcher and once with a female employee who said she'd been sexually harassed but couldn't show that she'd suffered monetary loss as a result.

Like his opinions in other areas, Alito's work in discrimination cases is nearly devoid of explosive language or dismissive tones. His arguments have been convincing to his colleagues: Thirteen of his rulings were for the 3rd Circuit majority, meaning that at least one other judge on the court agreed with him.

But in most of the employment discrimination cases, Alito succeeded in applying a standard higher than the Supreme Court requires to plaintiffs' claims, often forcing them to prove that bias was the motivation behind their misfortunes.

In two cases, Alito dissented from 3rd Circuit rulings that allowed discrimination claims to proceed. In one, a racial discrimination case involving a black hotel maid, Alito agreed that the woman had been treated unfairly, but he said that the employer had produced enough evidence to show that the unfair treatment didn't amount to illegal discrimination.

In the second case, a gender discrimination claim, Alito accused the majority of making it too easy for the plaintiffs to get to trial.

Alito's other opinions on discrimination reveal similar skepticism. He has written consistently that plaintiffs failed to prove that bias was the "determinative" factor in their misfortunes and that the courts should resist subjecting employers to second-guessing about routine personnel matters.

In one case, Clowes v. Allegheny Valley Hospital, he overruled a jury verdict in favor of a nurse who claimed age discrimination. Janet Clowes, a nurse who'd worked at the hospital for 30 years, alleged that her employer's harassment effectively forced her to quit her job, called constructive discharge.

Alito's decision to overturn the jury verdict was an aggressive move, seemingly at odds with his usual restraint.

"We recognize that the jury ... presumably concluded ... that (the supervisor) treated Clowes unfairly," Alito wrote. "But it is clear that unfair treatment is by no means the same as constructive discharge."

Alito's record also suggests that the former New Jersey U.S. attorney seldom strays far from his prosecutorial roots and remains reluctant to side with criminal defendants. His tough views on crime and punishment are likely to cement the Supreme Court's rightward movement in that area, particularly when it comes to evaluating the complex federal sentencing laws and the ongoing efforts by Congress to write new criminal laws.

In 60 criminal appeals that resulted in published decisions in which he wrote a majority, dissenting or concurring opinion, Alito sided with a defendant's key argument in 12 cases, most of the time sending a case back to a lower court judge for a new sentencing hearing.

Alito voted to overturn two convictions in those cases, excluding appeals where he left a central conviction intact but set aside other offenses.

But from police searches to the death penalty, Alito has rarely been persuaded to overturn a conviction or sentence.

His view of habeas corpus rights - the chief legal window through which a death row inmate seeks a reprieve - has been particularly restrictive. Because the death penalty is one of the high court's most active areas of criminal review and because O'Connor has been the swing vote in many capital cases, Alito's confirmation could mean a dramatic change.

Alito has taken part in at least 10 cases involving death row inmates since 1991, and he's sided with the defendants in two and allowed a third capital case to proceed in federal court without taking a position on the merits. That puts him among the 3rd Circuit's most conservative jurists when it comes to the death penalty.

Former 3rd Circuit Chief Judge Edward Becker, appointed by President Reagan, has sided with death row inmates eight times in as many cases in the same period.

In one death row case, the Supreme Court ruled that Alito was wrong. Ronald Rompilla, a Pennsylvania death row inmate, would have been executed this year under Alito's reasoning. But the Supreme Court, in a 5-4 ruling this June authored by O'Connor, found that Rompilla received such dreadful representation at his 1988 trial that his death sentence should be overturned, a rebuke to Alito's view that his lawyer did enough to protect his rights.

The death penalty case that appears to best illustrate Alito's stance came in 2001, when a splintered 3rd Circuit overturned the death sentence of James William Riley, who was on Delaware's death row for the 1982 murder of a liquor store owner.

The majority expressed deep concerns about racial bias in the selection of Riley's jury, citing the fact that prosecutors dismissed all three prospective black jurors. Defense lawyers also produced evidence that no black juror had sat on any Dover capital case during the time when Riley, who is black, was on trial.

"One of the principal objections to the operation of the death penalty in this country is that it is applied unevenly, particularly against black defendants," wrote 3rd Circuit Judge Dolores Sloviter, one of the court's more liberal judges.

Alito was unmoved. He argued that much more than legal worry is required to justify overturning the findings of a state court, particularly in a death penalty case.

"Reviewing habeas decisions in capital cases is one of the most important and difficult responsibilities of this court," he wrote. "Our role is vital - but limited - and is not to be confused with that of the jury or the various branches of state government."

Alito called the majority's finding "simplistic" and added that it treated the challenge of the jurors as "if they had no relevant characteristics other than race, as if they were in effect black and white marbles in a jar from which lawyers drew."

To supporters and detractors, that was vintage Alito. He demands clear proof that something is awry, not just inference - and the burden of proof is high.

He wrote a majority decision this year ordering a new murder trial for defendant Curtis Brinson - but only after the record showed that a Philadelphia prosecutor had dismissed 13 of 14 prospective black jurors, then showed up in a training videotape explaining ways to keep black jurors off criminal trials.

"It shows a very consistent conservative record of deferring to either the state courts or deferring to police and prosecutors in criminal cases," said David Rudovsky, a University of Pennsylvania law professor who argued numerous criminal cases before Alito. "It seems that unless the error is very egregious, he won't step in."

Alito's deference to law enforcement is most evident when he has addressed allegations that police and prosecutors overstepped their constitutional bounds.

The judge's supporters insist that he won't rubber-stamp law enforcement's conduct. In his 1998 decision in the case of Jesse Kithcart, who was convicted of federal gun charges, for example, Alito sided with the defendant's core argument.

Alito found that Kithcart's conviction had been tainted by an unconstitutional police search. Evidence showed that police searching for a robber stopped Kithcart only because he was the first black they saw driving a sports car after they were alerted to look for "two black males in a black sports car."

"The mere fact Kithcart is black and the perpetrators had been described as two black males is plainly insufficient," Alito wrote.

Still, Alito's record shows a strong deference to police authority.

In a decision last year, he endorsed an 18-month FBI undercover probe that included audio and video monitoring of boxing promoter Robert W. Lee Sr.'s hotel suite, done without a federal judge's approval. Lee, a founder of the International Boxing Federation, was convicted of money laundering and tax evasion.

Although Alito found that the surveillance didn't violate Lee's privacy rights, a colleague dissented, saying: "The limitations of that Orwellian capability were not subject to any court order."

In one highly publicized case, Alito upheld a police strip search of a 10-year-old girl by arguing that a warrant that didn't mention the girl should be read "broadly." The ruling is a rare instance of a conservative jurist arguing for a departure from strict textual interpretation in favor of government intrusion.

And in another 1995 case, Alito dissented from two colleagues who found that a family's lawsuit over a 1990 drug raid could proceed. Inez Baker and her two teenage sons were forced to the ground at gunpoint and handcuffed as they arrived at another son's house for dinner.

Although Alito is the son of Italian immigrants, his record in immigration cases is similar to his perspective in criminal cases. He's demonstrated an inclination to defer to the judgment of the immigration courts, which are under the Justice Department's umbrella. As a result, a non-citizen fighting deportation is paddling upstream with Alito.

Legal scholars, and some of Alito's supporters, have pointed to his decision in the case of Parastoo Fatin, a young Iranian woman who was fighting deportation in the early 1990s, as evidence of his scholarship and his impact on immigration law. Alito ruled in Fatin's case that gender-based persecution could be grounds for asylum.

But the ruling was a hollow victory for Fatin. She lost her case when Alito found that she hadn't shown enough factual evidence to prove that she'd be persecuted if she were sent back to Iran. It was typical Alito - an impeccably crafted decision that denied relief to an individual.

"I'm not optimistic," said Lawrence Rudnick, a Philadelphia immigration lawyer who represented Fatin. "He's certainly not going to be good for immigrants' rights."

Alito has sided with non-citizens in seven of his 24 published rulings involving matters such as life-or-death bids for asylum. And when Alito has sided with an immigrant, it's often been on narrow grounds. Two instances involved Chinese women who produced evidence that they'd been targets of China's forced abortion policy, established grounds for asylum that are especially congenial to social conservatives.

In a third case, Alito found that Annagret Goetze, a German national, shouldn't be deported because she qualified as a religious worker for a Pennsylvania nonprofit committed to "Christianizing the ordinary aspects of life for the mentally handicapped."

Alito's deference to the Board of Immigration Appeals, the last word in the immigration system, will take on heightened importance if he joins the Supreme Court, which is likely to consider important new developments in immigration law.

Alito was part of a major 3rd Circuit decision two years ago that upheld the Bush administration's streamlining of the Board of Immigration Appeals. But his ruling was another stark reminder of his strict view of asylum claims. The majority overturned a perfunctory Board of Immigration Appeals decision to reject the asylum bid of Saidon Dia, who presented evidence that Guinean police were hunting for him and that political enemies had burned his house to the ground and raped his wife.

Alito dissented. While conceding that such cases are "among the most difficult we face," Alito found Dia hadn't produced enough proof to second-guess the immigration system.

"In cases where people are requesting asylum based on politics or a particular social group, he's very strict," said David Leopold, an Ohio immigration lawyer who's examined Alito's record for the American Immigration Lawyers Association. "Is someone fleeing forced abortion more deserving of protection than someone fleeing political persecution?"



Knight Ridder researcher Tish Wells contributed to this report.