11/5 Editorial

Well, you certainly can’t say that Judge Samuel Alito, with 15 years experience on the federal appellate bench and stints as a U.S. attorney and an assistant solicitor general, is not qualified to serve on the U.S. Supreme Court. If he seems to be reasonable and likable during Senate hearings — and by all accounts he is likely to be — it will be difficult to paint him as an extremist. So politically this is a solid choice.

It is still unclear whether he meets our criteria, which centers on not using the judiciary to legislate but seeing the judiciary’s most important role to be checking the legislative and executive branches when they use power the Constitution doesn’t grant them or violate individual citizens’ rights and freedoms.

The record we’ve been able to tease out so far is mixed.
For starters, the cute habit of calling Sam Alito “Scalito,” or “little Scalia,” implying that he is something of a clone of Justice Antonin Scalia, is misleading. Both are conservative in a broad sense, but knowing that doesn’t necessarily imply complete agreement.

In fact, Justice Scalia has written a couple of Supreme Court decisions that overturned lower-court decisions. Justice Scalia is known for a certain flamboyance, both in his personality and his style of writing, whereas Judge Alito tends to be low-key, with a “just the facts” approach.
Judge Alito seems to be the careful kind of judge about whom it is usually a mistake to infer his political opinions from his written opinions. On abortion — which as a Roman Catholic he probably opposes personally — he upheld a Pennsylvania law that placed some restrictions on abortion, notably spousal notification, that was later overturned by the high court. His opinion, however, shows an attempt to apply Justice O’Connor’s “undue burden” test, specifically, that the restriction would not place an undue burden on the ability to get an abortion. (Justice O’Connor, however, overruled that thinking.)

Later, Judge Alito ruled that the state must fund abortions in certain cases because the law was written that way, and that a New Jersey law restricting abortion was invalid because the Supreme Court had just ruled a similar Nebraska law unconstitutional, and that was the precedent he was obliged to follow.

Of course, a circuit judge is obliged to respect Supreme Court opinion whereas a Supreme Court justice could be in a position to change the precedent.

We suspect a Justice Alito would be more deferential to legislative and executive actions than we would prefer. His opinions on criminal justice matters suggest more deference to police search powers than makes us comfortable.

A 1996 dissent suggesting that Congress didn’t have the power under the commerce clause to pass a new regulation on machine guns when such regulations were properly the province of the states suggests a healthy attitude on federalism questions.

Judge Alito’s confirmation hearings could provide the kind of healthy discussion of the proper role of the courts that hearings on Harriet Miers would probably have lacked. So as a potential “teaching moment,” this nomination is welcome.