History > 2005 > USA > U.S. Supreme Court

A younger Samuel Alito,

his wife, Martha-Ann,

and their children, Philip, right, and Laura.

Alito family,

via Associated Press

Court Choice Is Conservative by Nature, Not Ideology

NYT

7 November 2005

https://www.nytimes.com/2005/11/07/
politics/politicsspecial1/court-choice-is-conservative-by-nature-not.html

In Criminal Cases,

a Court Nominee Hews to Rules

December 25, 2005
The New York Times
By JONATHAN D. GLATER

If Samuel A. Alito Jr. had been on the Supreme Court back in January, Ronald Rompilla might well be a dead man.

That month the Supreme Court heard an appeal of a decision, written by Judge Alito for a panel of the Third Circuit Court of Appeals, that upheld Mr. Rompilla's sentence for a murder committed in 1988. The Supreme Court, finding that Mr. Rompilla's lawyers had been ineffective representatives at trial, later reversed the ruling in a 5-to-4 vote.

Mr. Rompilla's appeal offers a study of how Judge Alito, President Bush's nominee to the Supreme Court, has handled criminal cases that have appeared before him.

Perhaps not surprisingly, the judge, a former federal prosecutor, has often - though far from uniformly - ruled against defendants. But it is not clear that he stands out: In appeals of criminal convictions generally, defendants face a steep uphill battle. Nationally, just 5.6 percent of such appeals result in some kind of reversal, according to the federal Office of Court Administration.

Judge Alito's opinions in criminal cases are meticulously written, with careful deference to the findings of trial court judges and juries and scrupulous determination to fit his decisions into the framework built by past cases. He hews to the rules.

"The perception is, he's coming from an extremely conservative point of view," said George Newman, a defense lawyer in Philadelphia who has argued cases before the judge. "He's not a good defense judge."

In his appeal, Mr. Rompilla argued that his trial lawyers had provided inadequate representation, saying they failed to investigate his background thoroughly by interviewing family members carefully and reviewing medical, police, school and prison records. As a result, his new lawyers said, they did not uncover evidence that he had limited mental capacity, was neglected as a child and suffered other problems.

Had evidence of his traumatic life experiences been presented at trial, the lawyers argued, then jurors would not have sentenced him to death.

Judge Alito did not agree with these arguments.

"Trial counsel conducted an extensive investigation for mitigating evidence," he wrote. "According to their testimony, trial counsel got to know Rompilla well during the course of their representation and established a good relationship with him. Rompilla was questioned about his background but provided no useful information or leads."

What is most striking is Judge Alito's close application of rules established by prior cases on what standard of competence a lawyer must meet, without regard to the success of the lawyer's efforts. The focus was on the process they followed, not the result they achieved.

For example, he wrote, "With the benefit of hindsight, we know that these records contain useful information about Rompilla's childhood home environment, his mental problems and his problems with alcohol." But, he said, "trial counsel had grounds for believing that if there was any mitigating evidence of this sort to be found, at least a hint of its availability would be disclosed in the interviews with Rompilla and his family members or in the testing and evaluations performed by the three mental health experts whom they retained."

Judge Dolores K. Sloviter, who dissented from the decision by Judge Alito and Judge Walter K. Stapleton, strongly criticized the majority's reasoning. Judge Sloviter said it did not matter whether the explanation offered by Mr. Rompilla's lawyers for their failure to conduct further investigation was reasonable. What mattered, she said, was whether the failure to investigate was itself reasonable.

It is a distinction that the Supreme Court emphasized as well.

In an opinion concurring with the ruling in favor of Mr. Rompilla, Justice Sandra Day O'Connor - whom Judge Alito has been nominated to replace - wrote: "In the particular circumstances of this case, the attorneys' failure to obtain and review the case file from their client's prior conviction did not meet standards of 'reasonable professional judgment.' "

The criminal cases that came before Judge Alito in his 15 years on the appellate court raised a range of issues. Several concerned sentences meted out to convicted criminals. In a 2004 case involving a pastor convicted of participating in a scheme to steal from his church, he wrote that the lower court judge was correct not to reduce the pastor's 51-month sentence because of his charitable work.

It is "only when an individual goes well beyond the call of duty and sacrifices for the community that a downward departure may be appropriate," Judge Alito wrote for a unanimous three-judge panel. "The defendant's net charitable and civic contributions - taking into account both the good and bad that he did in his capacity as a member of the clergy - cannot be considered as so extraordinarily positive as to warrant a downward departure."

Other cases involved substantive legal questions about, for example, the legitimacy of a particular wiretap or search. In the case of an International Boxing Federation official convicted of taking bribes, Judge Alito ruled that a video recording of the hotel room in which bribes were paid was properly taken - a view that, a dissenting judge commented, would "gulp down the Fourth Amendment."

The boxing official, Robert W. Lee, argued that the videotaping had violated the Fourth Amendment because it was conducted without a warrant. But Judge Alito wrote that because one of the people in the room had consented to the taping and could have testified to anything said, Mr. Lee had "no legitimate expectation of privacy." The judge added, "Although Lee had an expectation of privacy in the hotel suite so long as he was alone there," once he allowed someone else to enter, that expectation vanished.

Sometimes the judge's meticulously logical approach and exacting standards worked in favor of a defendant. In a case decided in 2003, for example, Judge Alito wrote a unanimous opinion for a three-judge panel that concluded that Ronald A. Williams, a black man convicted of murder, should be given a chance to show that a juror hearing his case had concealed racist views.

Although courts are reluctant to inquire into jury deliberations, Judge Alito wrote, the woman who claimed to have heard a racist comment by a juror was not herself a member of the jury and she heard the comment outside the jury room. Therefore, excluding the woman's testimony "for the purpose of determining whether a juror lied during voir dire cannot be sustained," the judge wrote.

In a 2001 case, the judge also sided with a man challenging a murder conviction, this time after finding that the lower court judge had improperly rejected one of the man's arguments. The lower court had correctly dismissed claims that were not properly made, the judge wrote, but incorrectly lumped with them additional claims that the defendant, Robert E. Wenger Jr., should have been allowed to make.

Again, Judge Alito's reasoning was tight, technical and focused on procedure rather than outcome - as he wrote in the unanimous opinion of a three-judge panel. "Needless to say," he said, "we express no view regarding the merits of the claim."

In Criminal Cases, a Court Nominee Hews to Rules, NYT, 25.12.2005, http://www.nytimes.com/2005/12/25/politics/politicsspecial1/25crime.html

Alito Memo in '84

Favored Immunity for Top Officials

December 24, 2005
The New York Times
By ADAM LIPTAK and DAVID E. ROSENBAUM

The attorney general should be immune from lawsuits for ordering wiretaps of Americans without permission from a court, Samuel A. Alito Jr., President Bush's Supreme Court nominee, wrote in a memorandum in 1984 as a government lawyer in the Reagan administration.

The memorandum, released yesterday by the National Archives, made recommendations concerning a lawsuit against former Attorney General John N. Mitchell over a wiretap he had authorized without a court's permission in 1970. The government was investigating a plot to destroy underground utility tunnels in Washington and to kidnap Henry A. Kissinger, the national security adviser.

The White House said yesterday that the issues discussed in that memorandum were not the same as those posed by President Bush's orders to the National Security Agency to eavesdrop on international communications without warrants.

"Judge Alito's memo regarding a purely domestic threat is completely different from N.S.A.'s efforts to thwart threats from foreign terrorist organizations," said Steve Schmidt, a White House spokesman.

In a letter to Judge Alito, Senator Charles E. Schumer of New York, a Democrat on the Judiciary Committee, said yesterday that he would question him vigorously about his current views on whether the attorney general and other top officials "have absolute immunity from suits based on even willful unconstitutional acts."

In 1972, the Supreme Court ruled that wiretaps without warrants in the context of domestic intelligence surveillance violated the Fourth Amendment, which prohibits unreasonable searches and seizures. The court did not address international communications.

"I do not question that the attorney general should have this immunity," Judge Alito wrote in 1984, arguing that top officials should not be subject to liability for damages for decisions relating to national security, including when they knowingly violated the law. But he counseled against appealing the issue to the Supreme Court, for two reasons.

"Absolute immunity arguments are difficult to pursue successfully," he wrote. "Because we now must argue that the official should be immune from violating clearly established legal standards," there is a "high risk of failure."

A second reason for not appealing, he wrote, was a 1978 law, the Foreign Surveillance Intelligence Act, that "clarified the procedure in this area and probably reduced in large measure the potential for future litigation."

That law, which is at the center of the current controversy, created the Federal Intelligence Surveillance Court, which considers and issues warrants for gathering intelligence in the United States. The administration did not seek permission from that or any other court for the recently disclosed monitoring.

In his 1984 memorandum, Judge Alito urged his superiors to await a different legal vehicle, presumably one not tied to the abuses of the Nixon administration, to make the argument that top officials were free to violate the law.

"Our chances of persuading the court to accept an absolute immunity argument would probably be improved in a case involving a less controversial official and a less controversial era," he wrote.

In the end, the superiors rejected his advice to appeal on just a procedural question. As predicted, the Supreme Court rejected the argument that Mr. Mitchell should have absolute immunity.

But, Justice Byron R. White wrote, Mr. Mitchell was nonetheless immune from the suit because he authorized the wiretap before the Supreme Court, in 1972, "finally laid to rest the notion that warrantless wiretapping is permissible in cases involving domestic threats to the national security."

Judge Alito's relatively positive assessment of the 1978 law, as useful clarification of the procedures to be followed in the context of national security surveillance, was a faint echo of his earlier strong advocacy, as a student at Princeton in 1972, for the establishment of a court to hear such warrant applications.

Judge Alito wrote on the subject as the chairman of a conference on privacy. The existence of the report he submitted for the conference, which included a discussion of gay rights, was first reported by The Boston Globe two months ago. But the report's extended discussion of wiretapping and other surveillance has not received much attention.

"We are convinced," Judge Alito wrote in 1972, "that in recent years government has often used improper means to gather information about individuals who posed no threat either to their government or their fellow citizens."

The solution, he wrote, was the creation of a "federal court of warrants." Six years later, the 1978 law established the intelligence court.

The court that Judge Alito advocated, he wrote, would "issue warrants for electronic surveillance in all cases involving national security." He underscored the word "all."

That analysis was prescient, said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a civil liberties group.

"It's an extremely precise statement of what seems, 35 years later, to be the central constitutional question just now," Mr. Rotenberg said.

But Peter Swire, an Ohio State University law professor who was the chief counselor for privacy in the Clinton administration, cautioned against making too much of the 1972 statements, both because Judge Alito was a young man and because the privacy conference "was emphatically a group effort."

Professor Swire said he based the second assessment on a similar conference he participated in as a student at Princeton a few years later.

On the United States Court of Appeals for the Third Circuit, in Philadelphia, where he has sat since 1990, Judge Alito has not had occasion to address eavesdropping for national security purposes. Last year, however, he upheld F.B.I. audio and video surveillance in a criminal investigation of a hotel room based on the consent of one of its two occupants, a government informer. There was no warrant.

A dissenting judge said that consent was not enough to overcome the privacy rights of the second occupant, Robert W. Lee, president of the International Boxing Federation, who was suspected of receiving bribes from boxing promoters and was convicted on conspiracy and tax charges.

"Lee clearly did not consent," Judge Theodore A. McKee wrote in dissent, "to the F.B.I. installing a camera that could potentially broadcast some images of his bedroom and bathroom activities throughout the day and night."

Alito Memo in '84 Favored Immunity for Top Officials, NYT, 24.12.2005, http://www.nytimes.com/2005/12/24/politics/politicsspecial1/24alito.html

Alito Argued to Overturn Roe

in 1985 Memo

December 23, 2005
By THE ASSOCIATED PRESS
Filed at 10:41 a.m. ET
The New York Times

WASHINGTON (AP) -- Supreme Court nominee Samuel Alito wrote in a June 1985 memo that the ruling that legalized abortion should be overturned, a position certain to spur tough questioning at January's confirmation hearings.

In a recommendation to the solicitor general on filing a friend-of-court brief, Alito said the government ''should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled.''

The June 3, 1985 document was one of 45 released by the National Archives on Friday. A total of 744 pages were made public.

The memo contained the same Alito statements as one dated May 30, 1985, which the National Archives released in November -- but with a forward note from Reagan administration Solicitor General Charles Fried acknowledging the volatility of the issue and saying that it had to be kept quiet.

Abortion has become a wedge issue in connection with Alito's confirmation to take the Supreme Court seat held by Associate Justice Sandra Day O'Connor, who is retiring. The federal appellate court judge has been seeking to assure senators that he would put his private views aside when it came time to rule on the issue as a justice. O'Connor has been a supporter of the landmark 1973 Roe v. Wade ruling affirming a woman's constitutional right to an abortion.

The documents released Friday are the latest involving Alito and abortion.

In paperwork released earlier from Alito's time in the Justice Department's solicitor general's office, he recommended a legal strategy of dismantling abortion rights piece by piece. And as part of an application for a job as deputy assistant attorney general, Alito said the Constitution does not guarantee abortion rights.

The latest memo is certain to stir controversy as the Senate prepares for confirmation hearings for Alito, slated to begin Jan. 9.

Fried took note of the implications of the emerging policy in his introduction to the June 1985 memo. ''I need hardly say how sensitive this material is, and ask that it have no wider circulation,'' he said.

In the memo, Alito focused on a woman making an informed choice and states rights.

''While abortion involves essentially the same medical choice as other surgery, it involves in addition a moral choice, because the woman contemplating a first trimester abortion is given absolute and unreviewable authority over the future of the fetus,'' Alito wrote. ''Should not then the woman be given relevant and objective information bearing on this choice? Roe took from the state lawmakers the authority to make this choice and gave it to the pregnant woman. Does it not follow that the woman contemplating abortion have at her disposal at least some of the same sort of information that we would want lawmakers to consider?''

Consistent with his previous writings, Alito said these arguments would be preferable to a ''frontal assault on Roe v. Wade.''

''It has most of the advantage of a brief devoted to the overruling of Roe v. Wade; it makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open,'' Alito wrote.

In his memo, Alito said the government, in its argument, might be able to nudge the court and ''to provide greater recognition of the states' interest in protecting the unborn throughout pregnancy, or to dispel in part the mystical faith in the attending physician that supports Roe and the subsequent cases.''

    Alito Argued to Overturn Roe in 1985 Memo, NYT, 23.12.2005, http://www.nytimes.com/aponline/national/AP-Alito.html

Supreme Court

to Review Texas Districting Dispute

December 12, 2005
The New York Times
By DAVID STOUT

WASHINGTON, Dec. 12 – The United States Supreme Court agreed today to review the constitutionality of the Texas redistricting plan that was engineered by Representative Tom DeLay, the House majority leader until recently, and helped Republicans add to their majority from the Lone Star State.

The justices will consider several lawsuits by Democrats and minority groups challenging the redrawn maps of voting districts pushed through in 2003. The redistricting has been credited with helping Republicans gain five more seats in the Texas delegation to the House of Representatives in 2004, increasing the Republican ranks to 21, compared with 11 Texas Democrats.

Today’s announcement by the Supreme Court comes 10 days after the Justice Department acknowledged that some of its top officials had overruled a determination by the agency’s civil rights division staff in 2003 that the redistricting plan would dilute the voting strength of minorities in violation of the Civil Rights Act of 1965.

The justices are likely to hear arguments in the spring and issue a decision before they adjourn for the summer, just before the 2006 Congressional election campaigns begin in earnest.what remedy(ies) is challenge upheld?

Mr. DeLay had to step down from his majority post, at least temporarily, after he was indicted in September in Texas on state money-laundering charges linked to fund-raising for political campaigns. The lawmaker has proclaimed his innocence and has described the charges as the handiwork of a publicity-happy Democratic prosecutor.

Mr. DeLay has asserted that his only “crime” has been helping Republicans get elected. As Nathan Carlile of LegalTimes.com put it recently: “It is widely agreed that Republican Representative Tom DeLay plays politics the way Ty Cobb ran the base paths – spikes up. How lawful that style is depends on who is answering the question.”

The Texas redistricting at issue has been accompanied by unusual procedures, hard-ball politics and traces of comedy.

Following the 2000 census, a three-judge federal court redrew the state’s Congressional district boundaries after the State Legislature could not agree on a map. But when Republicans won big majorities in both houses of the State Legislature in 2002, Mr. DeLay pushed for a new map, even though state legislatures normally create new maps only once a decade, based on the preceding census.

In the spring of 2003, on the eve of a debate over the new map, dozens of Democrats in the State Legislature fled the state so there could not be a quorum for a vote. They were tracked down by the Texas State Police, but refused to return to the Capitol in Austin.

Gov. Rick Perry, a Republican, convened a special session in which the new redistricting plan finally cleared the House. But then several Democrats in the Senate went into hiding. Despite the stalling tactics, the State Legislature finally adopted the plan, in part because Mr. DeLay brokered an agreement that satisfied enough lawmakers.

But the bitterness has only increased since then. Some Democrats who had served in Congress for years were swept out in 2004 after being forced to run in new, much less politically friendly districts. And the recent disclosure that the civil rights staff of the Justice Department had considered the Republican plan to be in violation of the Voting Rights Act added a new ingredient to the political stew.

“In sum, the proposed plan reduces the level of minority voting strength,” a memo by the civil rights staff concluded. “The state failed to follow its traditional redistricting principles preserving communities of interest and forbidding fragmentation or packing of minority voters.”

The Justice Department, which under the Voting Rights Act oversees redistricting plans in Texas and other states with histories of racial discrimination, approved the plan despite the memo. Attorney General Alberto R. Gonzales, a former Texas Supreme Court justice, defended the decision of his predecessor, John Ashcroft, to approve the plan and said the conflicting views within the department indicated a healthy deliberative process.

In October 2004, the Supreme Court looked at the Texas redistricting and sent it back to a lower federal court. That court rejected challenges to the redistricting. But since then, the existence of the Justice Department memo has become known.

Now, the United States Supreme Court – led by a new Chief Justice, John G. Roberts Jr., and with Judge Samuel A. Alito Jr. nominated to succeed Justice Sandra Day O’Connor – will take up the case again.

    Supreme Court to Review Texas Districting Dispute, NYT, 12.12.2005, http://www.nytimes.com/2005/12/12/politics/12cnd-scotus.html

Supreme Court Weighs

Military's Access to Law Schools

December 7, 2005
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Dec. 6 - The military wants access to law schools on the same basis as other potential employers seeking to recruit students, although openly gay law students, of course, need not apply. The law schools insist that only those employers who pledge not to discriminate, against gay men and lesbians or anyone else, are welcome.

For more than 10 years, the two sides have circled one another as Congress pulled the noose ever tighter in the form of a threatened withholding of federal money from noncompliant universities. A showdown in the Supreme Court appeared inevitable, and on Tuesday it finally took place.

The result was a lopsided argument during which the justices appeared strongly inclined to uphold a federal law known as the Solomon Amendment, which withholds federal grants from universities that do not open their doors to military recruiters "in a manner at least equal in quality and scope" to the access offered civilian recruiters.

Or as Chief Justice John G. Roberts Jr. put it succinctly: "It says that if you want our money, you have to let our recruiters on campus."

The constitutional question was one of free speech and association. The federal appeals court in Philadelphia, ruling last year in a lawsuit brought by a coalition of some three dozen law schools, barred enforcement of the Solomon Amendment on the ground that it forced the schools to "propagate, accommodate and subsidize the military's expressive message" of disapproval of homosexuality despite the law schools' commitment to equal rights for their gay students.

Since 1991, the American Association of Law Schools, which includes 166 of the 188 accredited law schools, has required its member schools to insist that prospective employers agree to a policy of nondiscrimination on grounds that include sexual orientation. As law schools began to bar military recruiters, Congress responded with a series of amendments to military spending bills. While the measures were addressed to universities, and not specifically to law schools, it was the law schools that were the source of resistance.

At first, Congress provided only that Defense Department grants would be withheld. Eventually, it added a long list of federal agencies and made clear that a denial of access by any part of a university would jeopardize federal grants to the entire university. At this point, with the stakes so high, law schools began to give in, many complying grudgingly by relegating military recruiters to off-campus locations. Congress responded last year by adding the provision that requires not only access, but equal access.

In the argument on Tuesday, the law school coalition's lawyer, E. Joshua Rosenkranz, had difficulty gaining traction as he urged the justices to uphold the appeals court's judgment that the Solomon Amendment amounted to "compelled speech" by forcing the law schools to convey the military's message. Chief Justice Roberts made his disagreement unmistakable.

"I'm sorry, but on 'compelled speech,' nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment," the chief justice said. "Nobody thinks the law school believes everything that the employers are doing or saying."

The lawyer adjusted his focus. The law schools have their own message, "that they believe it is immoral to abet discrimination," he said.

This time, Justice Sandra Day O'Connor took issue. "But they can say that to every student who enters the room," she said.

"And when they do it, your honor, the answer of the students is, we don't believe you," Mr. Rosenkranz said.

"The reason they don't believe you is because you're willing to take the money," Chief Justice Roberts interjected. "What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."

Earlier, Solicitor General Paul D. Clement had assured the justices that the Solomon Amendment permitted law schools to be clear, even outspoken, in their disagreement with the military's policy.

Asked by Justice Ruth Bader Ginsburg what a law school "could do concretely while the recruiter is in the room," Mr. Clement replied that as long as the school granted equal access, "They could put signs on the bulletin board next to the door. They could engage in speech. They could help organize student protests."

Justice Anthony M. Kennedy indicated that he thought Mr. Clement was conceding too much. "You mean they could organize a student protest at the hiring interview room, so that everybody jeers when the applicant comes in the door?" he asked, adding, "I'm surprised."

Justice Antonin Scalia asked, smiling, "You're not going to be an Army recruiter, are you?"

"I won't be one of them," the solicitor general replied, "but I think the Army recruiters are not worried about being confronted with speech" as long as they had the same access as other recruiters.

At the beginning of the government's argument in the case, Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152, several justices challenged Mr. Clement's assertion that the military was simply seeking equal access. These justices, reflecting an argument in a brief filed by a group of Harvard Law School professors, noted that requiring all recruiters, including the military, to accept a nondiscrimination policy would, in fact, amount to equal treatment and so would satisfy the Solomon Amendment.

"You're receiving what other employers in the same situation would receive," Justice Scalia told Mr. Clement. Interpreting the statute in that way would "avoid a difficult constitutional question," Justice Stephen G. Breyer said.

Mr. Clement replied, "I don't think there's a difficult constitutional question to be avoided here." He urged the justices to avoid the conclusion "that the statute effectively accomplishes nothing."

With both sides clothing their arguments in the language of nondiscrimination, it became clear that the nondiscrimination principle cuts in more than one direction. Justice Breyer suggested to Mr. Rosenkranz that a victory for the law schools might also provide a constitutional basis for others to object to abiding by other federal antidiscrimination laws.

"They also have the same right, Bob Jones University, because they disapprove of social mixing of the races?" Justice Breyer asked, referring to the Greenville, S.C., university that lost its tax-exempt status because of its racial policies in a Supreme Court case 25 years ago.

Mr. Rosenkranz tried to argue that the government could demonstrate a compelling need to eradicate racial discrimination.

But the military has needs of "immense national importance" also, Justice Scalia said.

In the end, it appeared that the law schools' ability to distance themselves from the military, even while yielding to the demand for access, was sufficient in the justices' minds to save the Solomon Amendment.

"It seems to me quite a simple matter for the law schools to have a disclaimer on all of their e-mails and advertisements that say the law school does not approve, and in fact, disapproves of the policies of some of the employers who you will meet," Justice Kennedy told Mr. Rosenkranz. "That's the end of it," he said.

And Justice Breyer asked "why you don't have here what I'd say is normal in the First Amendment area, that the remedy for speech you don't like is not less speech, it is more speech."

    Supreme Court Weighs Military's Access to Law Schools, NYT, 7.12.2005, http://www.nytimes.com/2005/12/07/politics/07scotus.html

Supreme Court

Hears Case of Recruiters on Campuses

December 6, 2005
Filed at 1:33 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court appeared ready Tuesday to uphold a law that says colleges cannot turn away military recruiters in protest of the Pentagon's policy on gays if the universities also want to receive federal money.

New Chief Justice John Roberts said schools unhappy with the ''don't ask, don't tell'' policy have a simple solution: turn down federal cash.

And Justice Sandra Day O'Connor, who is retiring, said colleges can post disclaimers on campus noting their objections to military policy.

Law school campuses have become the latest battleground over the policy allowing gay men and women to serve in the military only if they keep their sexual orientation to themselves.

Solicitor General Paul Clement said that when the government picks up the tab for things like research and education grants, the military also is entitled to demand ''a fair shot'' in terms of equal access for its recruiters to a university's ''best and brightest.''

Clement said the military is receiving nothing more than any other donor would expect.

A few justices, including David Souter, worried that the free speech rights of law schools could be hindered by Congress' action of tying funding to military recruiters' access.

''The law schools are taking a position on First Amendment grounds, and that position is in interference with military recruiting, no question about it,'' Souter said.

More court members seemed concerned about military recruitment in the post-Sept. 11 world.

Federal financial support of colleges tops $35 billion a year, and many college leaders say they could not forgo that money.

About a half dozen supporters of the law, all members of the same Topeka, Kan., family, waved signs, with slogans like ''America is Doomed,'' and yelled at reporters and passers-by in front of the court before the argument. They dragged behind them U.S. flags tied around their ankles as they paced the wet sidewalk.

''The Supreme Court shouldn't even have to debate about this,'' said Rebekah Phelps-Roper, 18.

Some students camped out overnight to get seats for the argument. Dan Noble, 26, a gay Yale Law School student said that ''you feel discriminated against when some recruiters will interview your fellow students but won't interview you.''

Immediately after the argument, the Supreme Court released an audio tape to news organizations because of interest in the case. Cameras are not allowed in court.

Many law schools forbid the participation of recruiters from public agencies and private companies that have discriminatory policies.

Law schools have ''a Hobson's choice: Either the university must forsake millions of dollars of federal funds largely unrelated to the law school, or the law school must abandon its commitment to fight discrimination,'' justices were told in a filing by the Association of American Law Schools.

The federal law, known as the Solomon Amendment after its first congressional sponsor, mandates that universities, including their law and medical schools and other branches, give the military the same access as other recruiters or forfeit money from federal agencies like the Education, Labor and Transportation departments.

Dozens of groups have filed briefs on both sides of the case, the first gay-rights related appeal since a contentious 2003 Supreme Court ruling that struck down laws criminalizing gay sex.

The latest case stems from a lawsuit against the Pentagon by a group of law schools and professors claiming their free-speech rights are being violated, on grounds they are forced to associate with military recruiters or promote their campus appearances.

Free-speech cases are often divisive at the court. If Samuel Alito, President Bush's nominee to succeed O'Connor, is confirmed by the Senate before the case is decided he could be called on to break any tie vote.

A panel of the Philadelphia-based 3rd U.S. Circuit Court of Appeals found it was reasonably likely that the law violated free speech rights. Alito serves on that appeals court but was not involved in the case.

The case is Rumsfeld v. Forum for Academic and Institutional Rights, 04-1152.

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On the Net:

Supreme Court: http://www.supremecourtus.gov/

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Associated Press reporter Elizabeth White contributed to this story.

Supreme Court Hears Case of Recruiters on Campuses, NYT, 6.12.2005, http://www.nytimes.com/aponline/national/AP-Scotus-Campus-Recruiters.html

Court Nominee Presents Father as Role Model

December 5, 2005
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Dec. 4 - When a Democratic senator asked the Supreme Court nominee Samuel A. Alito Jr. why he might empathize with the plight of minorities or the poor, he had his answer ready: the example of his late father, an Italian immigrant who in college once defended a black basketball player from discrimination on the team.

When other Democrats pressed Judge Alito about why he had once disagreed with the Warren Court decision that established the "one person, one vote" standard for state districts, he again recalled the legacy of his father, Samuel A. Alito, who worked for three decades as the director of research for the New Jersey Legislature.

In his bedroom at night as a boy, Judge Alito told senators, he could hear his father clicking away at a manual calculator as he struggled to redraw the state's legislative districts with equal populations, people present for the conversations said.

To some senators, Judge Alito has said his father taught him to "revere" the legislative process. He has pointed to his father as a model of bipartisanship. And he has happily told them that many people say he takes after his father. Two senators openly discussed the conversations, and aides who had been instructed not to speak to the press described them on condition of anonymity.

As Judge Alito prepares for his confirmation hearings next month, the elder Mr. Alito is emerging as a larger-than-life hero in the story his son presents to the public. Their relationship provides the kind of humanizing details that political advisers often encourage Supreme Court nominees to offer. And Judge Alito has often invoked his father's legacy to help deflect questions from skeptical Democrats.

Still, some colleagues and friends of the elder Mr. Alito, who died in 1987, said they had never heard some of the stories his son has recounted, including the episode about his support for the black student and the fact that his father immigrated from Italy as a child. Some of the elder Mr. Alito's colleagues said they first learned that he was born in Italy when President Bush mentioned it in announcing the nomination.

The elder Mr. Alito did not want to be called "Italian-American," said Arthur Applebaum, his longtime deputy in the legislative research service. "He just didn't care for hyphenated groups," Mr. Applebaum said, suggesting that Mr. Alito may have seen special consideration for certain ethnic groups as a sort of "reverse discrimination."

Colleagues of Judge Alito said he might have inherited the conservative sensibility his father displayed in private, including an instinctive cautiousness and a traditionalist approach to family life and social matters. Until the 1980's, for example, the elder Mr. Alito forbade women who worked for him to wear pants to the statehouse, long after other offices had accepted it, said Laurine Purola, a political consultant who worked with Mr. Alito in the 1970's and 80's.

"He was very particular about our dress," Ms. Purola said. "He just had a generally conservative, old-school approach."

Rose Alito, Judge Alito's mother, has also suggested that the family took a conservative view of abortion. "Of course, he is against abortion," she told The Associated Press about her son the day his nomination was announced. In a brief conversation last week, she declined to comment.

Calling attention to family connections has become an almost obligatory part of the judicial confirmation process, said Ronald Klain, a Democratic lawyer who worked for the Senate Judiciary Committee and later helped prepare nominees for the Clinton administration. Justice Ruth Bader Ginsburg, for example, held up drawings by her 6-year-old grandson at her confirmation hearings, and Justice Clarence Thomas talked of his family's humble roots in Pin Point, Ga.

Strategists and nominees of both parties learned the importance of such personal details from the failed 1987 Supreme Court nomination of Judge Robert H. Bork, which "became more about an abstract set of ideas and less about a person," Mr. Klain said. "It is much easier to debate an idea than it is to debate a person. Senators hate voting against a person."

Steve Schmidt, a spokesman for the White House, said no one in the administration had instructed Judge Alito to recount stories about his father. "Obviously, Judge Alito is very proud of his father," Mr. Schmidt said. "What a great American story, that the son of an Italian-American immigrant who came to America as a young boy searching for opportunity, that the American dream that compels so many millions of Americans has been realized in the nomination of his son to be a justice of the Supreme Court."

As director of research for the New Jersey Legislature, the elder Mr. Alito became known as a human encyclopedia of state demographics and legislative history. And his professorial appearance, including a thick shock of white hair and a pipe never far from his lips, added to his reputation.

Although he was a registered Republican, Mr. Alito was obsessive about avoiding any perception of partisanship in his office. Many of his colleagues said he never revealed any hint of his own inclinations on political issues, aside from the Legislature's importance to the state.

The story about discrimination that Judge Alito told senators dates to February 1935, when the New Jersey state college his father was attending agreed to bench a black basketball player for a game with a segregated teachers' college.

The elder Mr. Alito was the editor in chief of the college newspaper, which published an editorial calling the matter "an embarrassing affair involving the worst in racial animosities and sectionalism." The paper urged the school to put the player in for the next game or sever all relations "with institutions differing on the Negro situation," according to a copy in the college archives.

Mr. Alito was almost expelled for the paper's stand, and he often recounted the story as a lesson to his son, Judge Alito told senators.

"Alito wanted to tell me this story," said Senator Richard J. Durbin, an Illinois Democrat on the Judiciary Committee and one of the two senators who described the conversations. "I didn't pry it out of him."

Mr. Durbin added, "I thought it was a very moving insight about a life lesson learned from his father about the issue of race."

Mr. Applebaum, the elder Mr. Alito's deputy, and several other colleagues said they had not heard about the college episode but were not surprised. At the research service, they said, Mr. Alito hired black lawyers and staff members. "If they were qualified, he had no problem with it," Mr. Applebaum said.

The elder Mr. Alito's most prominent role came when the Supreme Court's "reapportionment" cases in the 1960's established the principle that state legislative voting districts must be of equal population: one person, one vote. The redrawing of New Jersey's districts started 20 years of legal and legislative battles full of risks for incumbent lawmakers. The issue was also rife with racial tensions between urban minorities and the mostly white suburbs, and as director of research, Mr. Alito was in charge of drafting the maps.

"He was walking a fine line," said Jack Lacy, a former Town Council member in Hamilton Township, N.J., who was a friend of the Alitos. "And he not only survived it, he enhanced his reputation."

That is the work that Judge Alito mentioned to senators to help explain his own objections, written in a 1985 application for a job in the Reagan administration, to the Supreme Court's reapportionment decisions.

Senator Ken Salazar, a Colorado Democrat who also described his talk with Judge Alito, said their conversation did not directly explain why he had questioned the decisions. Mr. Salazar added that he remained concerned about whether Judge Alito would "check his ideology at the door" if he sat on the court.

Still, Mr. Salazar said he responded with his own family story. "I took it that he was very close to his father," Mr. Salazar said.

    Court Nominee Presents Father as Role Model, NYT, 5.11.2005,
http://www.nytimes.com/2005/12/05/politics/politicsspecial1/05father.html

Alito File Shows

Strategy to Curb Abortion Ruling

December 1, 2005
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Nov. 30 - As a lawyer in the Reagan Justice Department, the Supreme Court nominee Samuel A. Alito Jr. played an integral role in devising legal strategy to pare back the landmark abortion rights case Roe v. Wade, documents disclosed Wednesday show.

Judge Alito argued in a 1985 memorandum to the Reagan administration's solicitor general that two pending Supreme Court cases were an "opportunity to advance the goals of overruling Roe v. Wade and, in the meantime, of mitigating its effects."

And in a strongly worded 17-page legal analysis, he recommended advancing the administration's ultimate case against Roe by defending state regulations requiring doctors to provide women seeking abortions with information about fetal development, the risks and "unforeseeable detrimental effects" of the procedure and the availability of adoption services or paternal child support.

Although the information might cause "emotional distress, anxiety, guilt and in some cases physical pain" to the women, Judge Alito wrote, such results "are part of the responsibility of moral choice," comparable to the feelings of "a legislator voting on abortion legislation, a judge or juror pronouncing a sentence of death or imprisonment," or "a military officer commanding a mission he knows will cost lives."

The memorandum substantiates recently disclosed statements Judge Alito made about his pride in contributing to the administration's efforts to end the constitutional right to abortion; he made those statements in a Reagan administration job application written a few months after the memorandum. It also illustrates Judge Alito's personal passion in opposing abortion rights and the formative role he played in the administration's approach to the cases.

The Reagan administration's solicitor general, Charles Fried, sent copies of Judge Alito's memorandum to several others in the Justice Department for discussion. "I need hardly say how sensitive this material is, and ask that it have no wider circulation," Mr. Fried wrote on the cover sheet.

When the administration weighed in on one of the cases, Thornburgh v. American College of Obstetricians and Gynecologists, Mr. Fried incorporated some of Judge Alito's arguments in the government's brief. But where Judge Alito sought to avoid "a frontal assault on Roe v. Wade" that he thought risked rejection, Mr. Fried decided to take it on directly. Judge Alito's name does not appear on the brief.

In an interview Wednesday, Mr. Fried said Judge Alito had helped write part of the brief, although not the parts directly criticizing Roe.

In his analysis of the cases, Judge Alito called the courts' reasons for overturning the abortion regulations "incredible," "remarkable" and "extraordinary." He suggested that "many physicians, including those operating high-volume abortion clinics, have a financial interest in encouraging women to have abortions," and that such doctors were more worried about "an I.R.S. agent investigating tax shelters" than about criminal prosecution for "an abortion-related offense."

And in a three-page proposed introduction for a brief, he argued that "what is clear is that so long as the court adheres to the several doctrines announced by Roe v. Wade, the difficulties and conflicts illustrated by these cases will continue to recur."

Coming as the Supreme Court heard its first abortion rights case in five years, the disclosure has assured that the subject will remain at the center of the debate over Judge Alito's nomination, in part because he would succeed Justice Sandra Day O'Connor, the swing vote in many such cases.

In addition to galvanizing the opposition of many liberal Democrats, the memorandum ratchets up the pressure on the handful of Republican senators who support abortion rights. Several, including Senators Susan Collins and Olympia J. Snowe, both of Maine, and Senator Lincoln Chafee, of Rhode Island, have said they will oppose a nominee committed to overturning Roe v. Wade. All three senators voted to confirm Chief Justice John G. Roberts Jr. None could be reached for comment.

Judge Alito, who sits on the United States Court of Appeals for the Third Circuit, has told senators that if confirmed to the Supreme Court he will weigh the value of upholding the abortion rights precedents even if he disagrees with the original decisions. He has stopped short, however, of disclosing how he would vote.

But Senate Democrats said Wednesday that the memorandum's arguments and language suggested that Judge Alito had prejudged the issues.

"This new information heightens concern about Judge Alito's views regarding 'settled law' and his eagerness to engage in activism to change a law with which he disagrees," Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, said in a statement.

But Steve Schmidt, a spokesman for the White House, said suggestions that the memorandum indicated how Judge Alito might rule from the bench "cross the border into silly land." Judge Alito wrote the memorandum as a lawyer "giving tactical advice" to his client, the Reagan administration, Mr. Schmidt said.

When interpreting precedent on the federal appeals court, he added, Judge Alito has voted in some cases to uphold and in others to strike down abortion restrictions.

When the Thornburgh case reached the Supreme Court, Mr. Schmidt noted, Justice O'Connor wrote a dissenting opinion that questioned the lower-court decisions. The majority opinion, written by Justice Harry Blackmun, upheld them.

In a statement, Senator Arlen Specter of Pennsylvania, a Republican supporter of abortion rights who is chairman of the Judiciary Committee, said he held out the possibility that subsequent precedents might have altered Judge Alito's views. "Many times the Supreme Court has decided the issue," Mr. Specter said, singling out the 1992 case of Planned Parenthood v. Casey.

But Senator Charles E. Schumer, a New York Democrat on the Judiciary Committee, said, "Maybe at the hearings he can dispel this, but the more you learn the more he seems to have something of an agenda."

Judge Alito, for his part, turned in his answers Wednesday to a Senate judicial questionnaire. In response to a query about "judicial activism," Judge Alito argued that the Supreme Court had a special responsibility for "self-questioning" because neither of the elected branches of government could provide a check on its role in interpreting the Constitution.

"Judges must be appropriately modest in their estimation of their own abilities; they must respect the judgments reached by their predecessors; and they must be sensibly cautious about the scope of their decisions," Judge Alito wrote. "And judges should do all these things without shirking their duty to say what the law is and to carry out their proper role with energy and independence."

Listing his memberships in clubs or organizations, Judge Alito wrote that recent disclosures reflected that in the mid-1980's he belonged to Concerned Alumni of Princeton, a group that initially opposed the school's admission of women and later opposed its affirmative action policies. But he added, "I have no recollection of being a member, of attending meetings, or otherwise participating in the activities of the group."

Judge Alito also listed the cases from which he had recused himself. During his 1990 hearings for confirmation to the Third Circuit, Judge Alito said he would recuse himself from any cases involving Vanguard, a mutual fund company that held some of his investments.

In 2002, Judge Alito sat in judgment of a case involving Vanguard and stepped aside only after a party to the case objected; Democrats have questioned the lapse, which he called an accident.

He later sent Senator Specter a letter arguing that his initial pledge applied to only his first years on the court and noting that ethics guidelines did not require him to recuse himself. His answers to his questionnaire, however, indicate that he continued to recuse himself from cases involving Vanguard throughout his time on the court.

After reading Judge Alito's 1985 memorandum, Democrats argued that the administration should disclose more documents from his work in the Reagan administration solicitor general's office. The Bush administration has so far maintained that disclosing such documents would compromise the confidentiality of White House deliberations.

Mr. Schmidt, the White House spokesman, said the administration was not changing that policy. He said Judge Alito's memorandum that was disclosed Wednesday had ended up in the files of other Justice Department officials and been transferred to the National Archives during the Clinton administration.

    Alito File Shows Strategy to Curb Abortion Ruling, NYT, 1.12.2005, http://www.nytimes.com/2005/12/01/politics/politicsspecial1/01confirm.html

For New Court,

Abortion Case Takes Old Path

December 1, 2005
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Nov. 30 - Well before the argument in a New Hampshire abortion case was over, the question that had drawn the crowds to the Supreme Court on a crisp Wednesday morning had an answer. No, abortion law was not about to undergo a major change in the hands of the new Roberts court, at least not yet.

The justices appeared to be in broad agreement on two propositions: that laws regulating teenagers' access to abortion must make allowances for medical emergencies; and that the New Hampshire law, requiring notice to one parent and a 48-hour waiting period, failed to do so.

The only dispute was over how to fix the problem, and even as to that question, there was some evidence of a consensus in the making.

The hundreds of spectators in the courtroom, and the countless more who were able to listen, thanks to the court's unusually speedy release of the audiotape, were treated to an intense and lively session during which the justices appeared at times almost to be thinking out loud about how to proceed.

Justices across the ideological spectrum appeared inclined to send the case back to the federal appeals court that had declared the law unenforceable in all respects, and to instruct that court to render a narrower ruling. Such a ruling would permit the law to take effect except when a doctor had certified that an immediate abortion - without either notifying a parent or seeking approval from a judge, an option known as a judicial bypass - was necessary to preserve a girl's health.

Addressing Jennifer Dalven, a lawyer for the American Civil Liberties Union representing the abortion clinics that brought the successful challenge to the law, Justice Stephen G. Breyer tried out his solution.

"I guess it would satisfy you to say that this statute cannot be enforced in any circumstance in which a physician certifies in good faith that he believes an immediate abortion is necessary for the health of the mother," Justice Breyer said. As much musing as questioning, he continued:

"All you're looking to is the state of mind of the physician. Now, the problem that I think we'd see with that is you'd then be writing into the law the broadest possible definition of what that health exception means. So, I'm not sure the New Hampshire Legislature would have wanted to do it, and I'm not sure the other side would like to do it. But looking at it from your point of view, do you have any objection to it?"

Ms. Dalven replied, "That would solve the constitutional problem here," but she also contended that the United States Court of Appeals for the First Circuit had taken the preferable course in blocking enforcement of the law in all possible applications.

"I think there is real cause for concern about rewriting this law for New Hampshire," she said. "If this court said that that's the proper course, I believe that the federal judiciary will be faced with rewriting abortion law after abortion law after abortion law."

Justices Ruth Bader Ginsburg and Sandra Day O'Connor also explored the prospect of sending the case back. "Is there any objection by you to remanding this thing to let it be more narrowly focused?" Justice O'Connor asked Ms. Dalven.

Musing aloud, Justice Ginsburg asked: "Why wouldn't it be entirely adequate to protect what you're concerned about to say this New Hampshire statute is unconstitutional to the extent that it fails to provide an exception for situations where there's imminent danger to health? And then all those imminent danger to health situations would be left unregulated, the statute doesn't reach them, but nonemergency cases would continue to be governed by the statute. In other words, why wasn't that the appropriate judgment for the First Circuit to have entered in this case, to say the statute's fine for nonemergency cases, but for emergency cases there is effectively no law?"

Chief Justice John G. Roberts Jr. made it clear that he thought the appeals court's ruling had been too broad, but was less clear about how to remedy the problem. He appeared to be suggesting that the law, which the New Hampshire Legislature passed in 2003 but which has never taken effect, should be challenged in an entirely new lawsuit, one brought by doctors who could face criminal and civil liability for performing emergency abortions.

"What is wrong with a pre-enforcement challenge by physicians?" the chief justice asked Ms. Dalven. "Why should you be able to challenge the act as a whole if your objection is so narrowly focused?"

Later, he elaborated: "Presumably the litigation would be very similar to what we've seen in this case, in which a doctor is saying well, you do need an immediate medical exception; others saying that the judicial bypass adequately addresses the concerns. But it would be focused on the provision that is causing you concern, rather than the statute as a whole."

Attorney General Kelly A. Ayotte of New Hampshire, who brought the appeal of the lower court's ruling, asserted in her argument that under New Hampshire's general health law, a doctor performing an emergency abortion would have a legal defense in any event, based on the state's general law regarding medical practice. Ms. Ayotte said she was prepared to issue a formal opinion to that effect if the occasion arose.

The attorney general's position left Justice Ginsburg unsatisfied. "That's the real problem here for the doctor who's on the line," she said. "I think a lawyer who cares about his client would say 'defense' is not what we want, what we want is that there is no claim; not that you have to put up a defense and maybe the attorney general will give us a letter saying that we come under that defense."

Justice John Paul Stevens reminded Ms. Ayotte that the sponsors of the parental notice law in the New Hampshire Legislature had rejected including a medical exception. "When you have legislative history that suggests that the Legislature considered this very defense and rejected it in the statute, would then that give some concern?"

Ms. Ayotte replied that while "there certainly was some indication that the Legislature did not want a general health exception," sponsors did not intend to leave pregnant teenagers unprotected in emergencies.

Of the 43 states that require parental involvement in a teenager's abortion decision, New Hampshire is one of only five not to include an explicit health exception in the text of the statute. All the laws do make exceptions for life-threatening medical emergencies.

Ms. Ayotte is in an unusual position in this case, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144. She is an appointee of New Hampshire's former governor, Craig R. Benson, a Republican who supported the law. Gov. John H. Lynch, a Democrat who defeated Mr. Benson for re-election last November, opposes the law and filed a brief asking the justices to overturn it, leaving Ms. Ayotte to pursue the appeal on her own.

Justice O'Connor is in an unusual position of her own. As long as she remains on the court, she participates in the arguments and votes on cases. But her vote will count only if the court issues the decision while she is still there, a prospect that is not out of the question in this case given the justices' apparent interest in a narrow ruling. Under the Senate Judiciary Committee's schedule of hearings for Judge Samuel A. Alito Jr., the nominee to succeed her, Justice O'Connor will serve at least through January.

Solicitor General Paul D. Clement argued for the Bush administration on Ms. Ayotte's behalf. He said that when there was "literally a one-in-a-thousand possibility that there's going to be an emergency," a court should not invalidate a statute with 999 valid applications.

The court heard arguments in another abortion-related case on Wednesday, revisiting for the third time the question of whether the federal racketeering law can be used in a private lawsuit to bar violent protests at abortion clinics. Based on the arguments in Scheidler v. National Organization for Women, No. 04-1244, it appeared likely that the justices would overturn a federal appeals court decision that has kept the 19-year-old case alive.

    For New Court, Abortion Case Takes Old Path, NYT, 1.12.2005, http://www.nytimes.com/2005/12/01/politics/politicsspecial1/01scotus.html?hp&ex=1133499600&en=96e52ac99af783df&ei=5094&partner=homepage


 

Pro and anti-abortion protesters rally

at the Supreme Court, November 30, 2005.

REUTERS/Joshua Roberts

Top court reviews abortion notice law        R        30.11.2005

http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=
2005-11-30T170119Z_01_HO021518_RTRUKOC_0_US-COURT-ABORTION.xml

Top court reviews abortion notice law

Wed Nov 30, 2005 12:02 PM ET
Reuters
By James Vicini

WASHINGTON (Reuters) - The U.S. Supreme Court takes up its first abortion case in five years and returns to one of its most contentious issues on Wednesday when it considers a state law requiring notification of a parent before a minor can end her pregnancy.

Arguments on the New Hampshire law will be the first abortion case for new Chief Justice John Roberts. It could give some indication whether he supports giving states more power to restrict abortions.

Roberts, who was nominated by President George W. Bush, has never ruled on an abortion case. At his Senate confirmation hearing, he declined to say how he would vote on future cases.

The case does not involve a challenge to the landmark Roe v. Wade decision in 1973 that established that women have a constitutional right to abortion.

And it could end up being argued again if the justices are split by a 4-4 vote and cannot get out a decision by the time retiring Justice Sandra Day O'Connor leaves the court.

O'Connor, who often has cast the decisive vote to strike down abortion restrictions, plans to step down when her replacement is confirmed. Bush has nominated the conservative Judge Samuel Alito to replace her, and the Senate is supposed to vote on his nomination in January.

The case presents the issue of whether state parental notification laws must provide an exception when the minor's health is at risk.

The New Hampshire law required that a parent be notified 48 hours in advance of any abortion for anyone under age 18. It provides an exception when the minor's life is in danger, but not for medical emergencies that are not life-threatening.

In its last abortion decision in 2000, the Supreme Court ruled that state abortion laws must provide an exception to protect the pregnant woman's health. It struck down a Nebraska law that banned a type of abortion procedure.

A federal judge and a U.S. appeals court declared the New Hampshire law unconstitutional because it lacked provisions for an exception involving a medical emergency. The law, adopted in 2003, has never been enforced.

The other major issue in the case involved the legal standard used by courts when reviewing the constitutionality of abortion laws before they take effect.

The high court has said a law is unconstitutional when it posed an undue burden on women in a large percentage of cases. It will consider whether a more difficult standard should be used, striking down the law only when the burden is unconstitutional in all cases.

The New Hampshire law was challenged by Planned Parenthood of Northern New England.

The Bush administration has strongly supported state and federal laws restricting abortion. Solicitor General Paul Clement, the Bush administration's top appellate lawyer, will defend the law along with New Hampshire Attorney General Kelly Ayotte.

    Top court reviews abortion notice law, R, 30.11.2005, http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=2005-11-30T170119Z_01_HO021518_RTRUKOC_0_US-COURT-ABORTION.xml

Supreme Court

to Hear Case on Abortion Rights Today

November 30, 2005
By THE ASSOCIATED PRESS
Filed at 11:45 a.m. ET
The New York Press

WASHINGTON (AP) -- New Hampshire Attorney General Kelly Ayotte urged the Supreme Court Wednesday to uphold that state's parental notification law, as the justices took up their first abortion rights in five years and under the leadership of new Chief Justice John Roberts.

The stakes are significant in the dispute over the law requiring a parent be told before a daughter ends a pregnancy, although the case does not challenge the 1973 Roe v. Wade ruling that said abortion is a fundamental constitutional right.

The court, starting with Justice David Souter, a New Hampshire native, wasted little time before firing questions at Ayotte about how the state's law deals with situations where a minor's health -- but not life -- is in danger and she needs an immediate abortion.

Justices Anthony Kennedy and Stephen Breyer zeroed in on how doctors would avoid being prosecuted or sued if they performed an abortion if the minor did not want to notify a parent and a judge was unavailable to provide the necessary approval.

The justices did not seem satisfied when Ayotte said another, existing New Hampshire law would protect the doctor from legal action and that the state's attorney general would set a policy that would shield physicians in such instances.

''How do we know that's the law?'' asked Breyer. ''There are people of good faith on both sides of this argument'' who may disagree about the other law's meaning.

The outcome of the case is likely to signal where the high court is headed on an issue that has been emotional and divisive among the justices and around the country.

Abortion was a prominent subject in Roberts' confirmation hearings and has emerged as a major issue in President Bush's nomination of appeals court Judge Samuel Alito to replace retiring Justice Sandra Day O'Connor. O'Connor has been the swing vote in support of abortion rights.

If Alito is confirmed by the Senate early next year, his vote could be needed to break a tie in the New Hampshire case being argued before justices. Abortion cases generally draw large crowds at the Supreme Court, but buzz around Wednesday's argument was particularly frenzied because the court until this fall had no turnover for 11 years.

O'Connor, a supporter of Roe v. Wade and the first woman named to the court, is retiring after 24 years and will likely leave the court before the case is decided. A Senate vote is planned for January on Alito, who is expected to be more receptive to abortion restrictions.

It is unknown how Roberts or Alito would vote on a rollback of Roe v. Wade.

Meanwhile, the court could use this case to make it extremely difficult for abortion rights groups to challenge restrictions, without dealing with the sticky issue of overturning Roe. At issue is the legal standard for courts in handling lawsuits over abortion laws.

The New Hampshire case is being closely watched by the dozens of states that require minors to tell a parent or get permission before having an abortion.

Justices were told that 24 states mandate a parent's approval and 19 states, including New Hampshire, demand parental notice.

The court is considering whether the 2003 New Hampshire law puts an ''undue burden'' on a woman in choosing to end a pregnancy. O'Connor is an architect of the undue burden standard, and was the deciding vote in the last abortion case five years ago, when justices ruled that a Nebraska law banning a type of late-term abortion was too burdensome.

That law, like the one at issue Wednesday, did not have an exception to protect the mother's health. New Hampshire argues that exceptions are permitted when the mother's health is at risk, and that should be enough.

The law requires a parent or guardian be notified when an abortion is planned for someone under 18, followed by a 48-hour waiting period. A judge can waive the requirement.

The Supreme Court agreed to allow news organizations to air audio recording of the court's argument immediately after its conclusion, giving the public its first chance to hear the new chief justice on the bench. Cameras are not allowed in the court.

Roberts, 50, replaced Chief Justice William H. Rehnquist, who died in September after a yearlong fight with cancer.

Justices agreed to hear the New Hampshire case before Rehnquist's death -- and before O'Connor surprised colleagues with news that she was stepping down.

The case is Ayotte v. Planned Parenthood, 04-1144.

    Supreme Court to Hear Case on Abortion Rights Today, NYT, 30.11.2005, http://www.nytimes.com/aponline/national/AP-Scotus-Abortion.html

Case Reopens Abortion Issue for Justices

November 29, 2005
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Nov. 28 - When the Supreme Court meets on Wednesday to hear its first abortion case in five years, the topic will be familiar: a requirement that doctors notify a pregnant teenager's parent before performing an abortion.

The court has upheld such laws for years, even in its more liberal days, and nearly all states now have them. But in the current climate, with the court in transition and the abortion debate as raucous as it has ever been, there is no such thing as just another abortion case. As reflected in dozens of briefs filed on both sides, interest in this new case, from New Hampshire, is extremely high.

And in fact, the case raises two questions with broader implications for the future of abortion.

One is how flexible a restriction on access to abortion must be when a woman's pregnancy poses a threat to her health. New Hampshire imposes a 48-hour waiting period after the required notice to at least one parent. Like all states, it provides an exception for conditions that present an immediate threat to a pregnant teenager's life.

But of the 43 states with parental-involvement statutes, New Hampshire is one of only five that do not also provide an exception for non-life-threatening medical emergencies, and it was on this basis that two lower federal courts declared the law unconstitutional.

The Supreme Court's decision in the case, Ayotte v. Planned Parenthood of Northern New England, may therefore shed light on the contours of the "health exception" that the court's abortion precedents have required since Roe v. Wade in 1973.

The second question, while seemingly quite technical, has perhaps even broader implications. The issue is under what circumstances federal courts can continue to do what they did in this case and in many other abortion cases: bar the enforcement of abortion restrictions that have not yet gone into effect, and so cannot be said to have injured any specific plaintiff.

Waiting in the wings, as the justices surely know, is another, perhaps even more highly charged abortion case. The Bush administration recently filed an appeal in defense of the federal ban on the procedure that abortion opponents have labeled "partial birth abortion," and the court must decide shortly whether to hear it.

That law, passed in 2003, has never taken effect. Federal courts around the country have declared it unconstitutional for lack of the health exception that the Supreme Court said was essential when it struck down a nearly identical Nebraska law in 2000. In passing the federal ban, Congress took account of that ruling by declaring that a health exception was superfluous because the procedure was, in its view, never medically necessary.

When the New Hampshire legislature was debating whether to enact a parental notification law in 2003, some legislators cited the Supreme Court's 2000 ruling in the Nebraska case, Stenberg v. Carhart, to argue that the measure needed a health exception. But the bill's sponsors resisted including one on the ground that it would offer doctors too big a loophole for avoiding parental involvement.

Without the health exception, the bill passed the State Senate by a vote of 12 to 11 and the House by a vote of 187 to 181. It was signed into law by the state's Republican governor, Craig Benson. John H. Lynch, the Democrat who defeated him in last November's election, opposes the law and has filed a brief in the Supreme Court urging the justices to declare it unconstitutional. The state's attorney general, Kelly A. Ayotte, a Republican, has pursued the appeal under her office's independent litigating authority and will argue the case herself.

On Dec. 29, 2003, two days before the law was to take effect, Judge Joseph A. DeClerico Jr. of Federal District Court in Concord, N.H., issued an injunction barring its enforcement. Ruling in a lawsuit brought by three abortion clinics and a doctor, the judge said the law's lack of an exception for medical emergencies "renders the entire act unconstitutional."

Judge DeClerico said further that the option of seeking permission for an abortion from a judge, an alternative the Supreme Court has insisted on in parental-involvement statutes, was time-consuming and therefore insufficient "on its face" to protect a girl in a medical emergency. A three-judge panel of the United States Court of Appeals for the First Circuit, in Boston, unanimously upheld the ruling last November.

In their Supreme Court briefs, Ms. Ayotte and the Bush administration, which entered the case as a "friend of the court" to defend the statute, are arguing that the lower courts should never have entertained an attack on the law "on its face" in the first place. The origins of this argument lie in the distinction between a challenge to a statute that has not yet gone into effect, sometimes referred to as a "facial" or "pre-enforcement" challenge, and a lawsuit filed to overturn a statute that is currently operating, often known as an "as-applied challenge."

Before invalidating a law on its face, the Supreme Court generally requires the plaintiff to show that the law would be unconstitutional in all possible applications. There are few exceptions, and abortion has been one of them.

In Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, the court ruled in a facial challenge to a law requiring married women to notify their husbands before obtaining an abortion, and declared the law unconstitutional.

Even if the law "poses almost no burden at all for the vast majority of women seeking abortions," the majority said, it did pose a "substantial burden" on a "large fraction" of women for whom it was relevant, namely those who feared the consequences of notifying their husbands, and was therefore invalid on its face.

The Bush administration argues that with the exception of spousal notice, all other abortion issues should await as-applied challenges, a position the plaintiffs in the New Hampshire case describe as "callous." Their brief says "it would preclude courts from granting any relief at all until faced with a woman in crisis."

With the exception of Roe v. Wade itself - "Jane Roe" was actually pregnant when she challenged the longstanding Texas law that made abortion a crime - most abortion precedents on the books began as facial challenges. A rule that women must wait until new restrictions actually take effect would be a substantial change in the way abortion cases are litigated.

On the question of a health exception, Ms. Ayotte and the Bush administration assert that the New Hampshire law's authorization for judges to act immediately in medical emergencies obviates the need for an explicit health exception. If the justices agree, they need not discuss the health issue further. But the plaintiffs argue that it would amount to judicial activism for the Supreme Court to interpret the law to provide the equivalent of a health exception when the law's sponsors made it clear that they did not intend to provide one.

    Case Reopens Abortion Issue for Justices, NYT, 29.11.2005, http://www.nytimes.com/2005/11/29/politics/29abort.html

Alito Memos

Supported Expanding Police Powers

November 29, 2005
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Nov. 28 - As a lawyer in the Reagan Justice Department, Samuel A. Alito Jr., the Supreme Court nominee, played an active role in advancing the administration's efforts to expand law enforcement powers and limit restrictions on prosecutors, documents released Monday by the Justice Department show.

The 470 pages of documents, which consist mainly of memorandums Mr. Alito wrote as a deputy assistant attorney general in the office of legal counsel in 1986 and 1987, generally address routine matters or highly technical legal issues. In several of the memorandums, however, Mr. Alito makes a series of arguments espousing a broad view of law enforcement authority and a skeptical view of proposals to protect individuals from legal investigations.

Mr. Alito, who is now a judge on the United States Court of Appeals for the Third Circuit, wrote the memorandums as a lawyer enacting the policies of the administration, not necessarily expressing his personal legal opinions.

But the disclosure comes at a time when liberal opponents of his nomination are buying television advertisements suggesting that as a judge on the Third Circuit, Judge Alito wrote dissenting opinions that would have reduced protections against police searches, including one regarding a strip search of a 10-year-old girl.

Steve Schmidt, a spokesman for the White House, said those accusations ignored other opinions Judge Alito wrote that protected defendants against improper police searches. "The criticisms by some outside-of-the-mainstream groups are deeply unfair because Judge Alito has shown a great respect for individual rights with regard to criminal prosecutions during his tenure as a federal judge," Mr. Schmidt said. "The attacks that are being directed against him don't bear any resemblance to the reality of his career."

In one 1987 memorandum disclosed Monday, Mr. Alito argued for stronger penalties specifically for violent civil rights violations.

In a 1986 memorandum, Mr. Alito argued that an opinion of the American Bar Association prohibiting lawyers from secretly taping conversations should not block lawyers for the Internal Revenue Service from secretly taping as part of a federal criminal investigation.

In another, he argued against proposed "model rules of professional responsibility" from the District of Columbia that would have precluded investigation of an individual without a "good faith belief" that the person was involved in criminal activity. He argued that the rules were written so broadly that they would cramp the ability of prosecutors to pursue legitimate leads.

In another memorandum, Mr. Alito argued that the Federal Bureau of Investigation should have broad latitude to investigate federal employees, contending that a federal district court decision appearing to limit such investigations was wrongly decided.

He also took a narrow view of an appeals court case, Clark v. Library of Congress, that prohibited an investigation of a government employee on the basis of his membership in a socialist party. Mr. Alito argued that decision still left room for a preliminary inquiry without more evidence, in part to determine if "there is a reasonable possibility that the employee is disloyal" and thus justifying a fuller investigation.

In another case that may prefigure legal issues relating to combating terrorism, Mr. Alito wrote to William H. Webster, director of the Federal Bureau of Investigation, that it would be permissible for the bureau to compile fingerprint and identifying information on Iranian and Afghan refugees who had entered Canada. The Canadian authorities had provided the information.

"In light of the intelligence reports that the bureau has summarized for us, we believe the collection of both fingerprint identification and criminal identification information" in an F.B.I. database was justified, Mr. Alito wrote, citing an executive order with a "broad mandate to protect against terrorism."

In a 1987 memorandum to John R. Bolton, who was then an assistant attorney general and is now ambassador to the United Nations, Mr. Alito also took a dim view of a draft of the United Nations Convention on the Rights of the Child.

Mr. Alito argued that the document failed to reflect "the traditional American aversion towards state intervention in child-rearing practices," and faulted it as infringing on the right of state governments to set policies on matters like child welfare standards and the administration of the death penalty for minors.

The United States Supreme Court earlier this year ended executions for crimes committed by minors, ruling by a vote of 5 to 4 in the case of Roper v. Simmons that such executions were cruel and unusual punishment.

    Alito Memos Supported Expanding Police Powers, NYT, 29.11.2005, http://www.nytimes.com/2005/11/29/politics/politicsspecial1/29confirm.html

Court Turns Down Case of F.B.I. Translator

November 28, 2005
The New York Times
By DAVID STOUT

WASHINGTON, Nov. 28 - The Supreme Court declined today to consider the case of a former F.B.I. translator who contends she was fired after accusing the bureau of ineptitude in the handling of intelligence related to terrorism.

The justices refused without comment to take the case of Sibel Edmonds, who was a contract linguist for the Federal Bureau of Investigation for about six months, translating material in Turkish, Persian and Azerbaijani, before she was dismissed on April 2, 2002.

Ms. Edmonds had complained repeatedly that bureau linguists produced slipshod and incomplete translations of important intelligence before and after the attacks of Sept. 11, 2001. She also accused a Turkish linguist in the bureau's Washington field office of blocking the translation of material involving acquaintances who had come under F.B.I. suspicion. She said, too, that the bureau had allowed diplomatic sensitivities to impede the translation of some intelligence.

The F.B.I. said Ms. Edmonds's allegations were incorrect and that she was disruptive.

Ms. Edmonds's accusations had caused great discomfort within the bureau. Justice Department officials had complained that allowing the suit to proceed could expose intelligence-gathering methods and disrupt diplomatic relations. Former Attorney General John Ashcroft invoked a rarely used power and declared that the case fell under the "state secret" privilege.

Mr. Ashcroft's declaration persuaded a federal district judge to dismiss Ms. Edmonds's suit in July 2004. The dismissal was upheld by the United States Court of Appeals for the District of Columbia Circuit last May, and today's rejection by the Supreme Court is apparently the last legal word in the matter.

But while it lasted, the episode was highly embarrassing to the bureau. A classified investigation by the Justice Department's inspector general's office concluded in 2004 that Ms. Edmonds's assertions "were at least a contributing factor" in her dismissal.

In addition to raising questions about the F.B.I.'s treatment of whistle-blowers, the Edmonds episode focused yet more attention on the bureau's handling of terrorism-related intelligence. The bureau had already been under fire for its handling of intelligence before and after the Sept. 11 attacks.

    Court Turns Down Case of F.B.I. Translator, NYT, 28.11.2005, http://www.nytimes.com/2005/11/28/politics/28cnd-scotus.html

From Alito's Past,

a Window on Conservatives at Princeton

November 27, 2005
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Nov. 26 - In the fall of 1985, Concerned Alumni of Princeton was entering a crisis.

The group, whose members at the time included the Supreme Court nominee Samuel A. Alito Jr., had been founded in 1972 by alumni upset that Princeton had recently begun admitting women. It published a magazine, Prospect, which persistently accused the administration of taking a permissive approach to student life, of promoting birth control and paying for abortions, and of diluting the explicitly Christian character of the school.

As Princeton admitted a growing number of minority students, Concerned Alumni charged repeatedly that the administration was lowering admission standards, undermining the university's distinctive traditions and admitting too few children of alumni. "Currently alumni children comprise 14 percent of each entering class, compared with an 11 percent quota for blacks and Hispanics," the group wrote in a 1985 fund-raising letter, which was sent to all Princeton graduates.

By the mid-1980's, however, Princeton students and recent alumni were increasingly finding such statements anachronistic or worse. "Is the issue the percentage of alumni children admitted or the percentage of minorities?" Jonathan Morgan, a conservative undergraduate working with the group, asked its board members that fall in an internal memorandum.

"I don't see the relevance in comparing the two, except in a racist context (i.e. why do we let in so many minorities and not alumni children?)," he continued.

By 1987, the group had sputtered out.

Mr. Morgan's memorandum and other records of Concerned Alumni are contained at the Library of Congress in the papers of William A. Rusher, a leader of the group and a former publisher of National Review.

Those records and others at Mudd Library at Princeton give no indication that Judge Alito, who sits on the United States Court of Appeals for the Third Circuit, was among the group's major donors. He was not an active leader of the group, and two of his classmates who were involved and Mr. Rusher said they did not remember him playing a role.

But in an application for a promotion in the Reagan administration in the fall of 1985, Judge Alito was asked to provide information about his "philosophical commitment " to administration policies and listed his membership in Concerned Alumni.

When the White House disclosed the application this month, liberal groups opposed to his nomination pounced on the connection. "The question for senators to consider and to ask is why Samuel Alito would brag about his membership in an organization known for its fervent hostility to the inclusion of women and minorities at Princeton?" asked Ralph G. Neas, president of People for the American Way.

Steve Schmidt, a spokesman for the White House, declined to comment. But former members of Concerned Alumni say the group did not object to the inclusion of minorities, only to the university's affirmative action policies.

Andrew P. Napolitano, a friend and Princeton classmate of Judge Alito, questioned the relevance of Judge Alito's association with the group. "His membership probably tells you that his social inclinations are conservative," said Mr. Napolitano, who became a leader of the group, "but he is so intellectually honest that he labored mightily to keep those inclinations from influencing his decisions on the bench."

As for how Judge Alito might rule as a Supreme Court justice, Mr. Napolitano, a former Superior Court judge in New Jersey, said, "Who knows what will happen?"

By 1985 Concerned Alumni had become well known in conservative circles. Financed in part by Shelby Cullum Davis, a member of the 1930 class and the ambassador to Switzerland in the Nixon administration, the group announced in an early fund-raising pamphlet that its goals included a less-liberal faculty and "a more traditional undergraduate population."

A pamphlet for parents suggested that "racial tensions" and loose oversight of campus social life were contributing to a spike in campus crime. A brochure for Princeton alumni warned, "The unannounced goal of the administration, now achieved, of a student population of approximately 40 percent women and minorities will largely vitiate the alumni body of the future."

The university's administration did not appreciate the accusations. In 1975, an alumni panel that included Senator Bill Frist of Tennessee, the current Republican leader and a 1974 Princeton graduate, concluded that Concerned Alumni had "presented a distorted, narrow and hostile view of the university that cannot help but have misinformed and even alarmed many alumni" and "undoubtedly generated adverse national publicity."

Mr. Frist could not be reached for comment.

In 1977, The New Yorker devoted 20 pages to a gently derisive history of the group's squabbles with the university. By the 1980's, Concerned Alumni had added a new cause: the defense of the exclusive "eating clubs," where many upper class Princeton students took their meals, and especially the three remaining all-male clubs.

As a student, Judge Alito had not joined any of the clubs, taking his meals at a university dining hall. But the leaders of Concerned Alumni and the editors of Prospect regarded the clubs as pillars of the university's distinctive social life that were under attack by the Princeton administration.

When the administration proposed a new system of residential colleges with their own dining halls, Prospect denounced the idea as a potential threat to the system of eating clubs. The magazine charged that, like affirmative action, the plan was "intended to create racial harmony."

Prospect portrayed the proposal as an effort to end the de facto segregation of the campus in which black students were concentrated in one dormitory and mostly did not belong to the clubs. "Doubtless, there will be many who regard this as mere stalling, and prejudice by another name," an unsigned 1982 editorial argued in defense of the magazine's position. "If realistic approaches to problems must be called dirty names because we do not like them, well, there is no remedy for it."

The magazine's content also grew increasingly provocative under the editorship of conservative rising stars, including Dinesh D'Souza and later Laura Ingraham. A March 1984 article by Mr. D'Souza told the story of a Puerto Rican first-year student whose mother sought to remove her from the school after learning that she was having sex with a male student and was receiving sex-education from the school. The magazine said the administration had increased the female student's financial aide to enable her to stay, and it accused Princeton of giving new meaning to the phrase "in loco parentis."

Hundreds of students signed a petition protesting the article as an invasion of privacy.

Later that year, Concerned Alumni fund-raising letters to Princeton graduates charged that the director of the university's health clinic had "celebrated the fact that 31 out of 33 pregnant students had abortions after receiving counseling from Princeton's sex clinic."

And in January, 1985 - a few months before Judge Alito filled out his Reagan administration application - William G. Bowen, the president of the university, issued a statement calling the letter "callous" and "outrageous."

In an interview, Ms. Ingraham said liberal groups were making too much of Judge Alito's membership. "Stop the presses! Sam Alito, a conservative, was once a member of a conservative Princeton alumni group!" she said.

Mr. D'Souza said supporters of Concerned Alumni were motivated by a fear that "traditional values" at Princeton had come under attack, but their specific concerns varied from academic standards to the athletic program. Judge Alito's support for the group "might tell you something," he said, "but it is hard to know what."

    From Alito's Past, a Window on Conservatives at Princeton, NYT, 26.11.2005, http://www.nytimes.com/2005/11/27/politics/politicsspecial1/27alito.html

News Analysis

Still Searching for a Strategy

Four Years After Attacks

November 23, 2005
The New York Times
By ADAM LIPTAK

Four years after the terrorist attacks of 2001, the government has yet to settle on a consistent strategy for holding and punishing people it says are terrorists. Its efforts remain a work in progress, notable for false starts and a reluctance to have the executive branch's broadest claims tested in the courts.

Last year, three Supreme Court decisions turned back the administration's boldest positions. Government lawyers do not seem eager to give the justices a vehicle for elaboration, at least not one that involves Jose Padilla, an American citizen captured on American soil.

Mr. Padilla's lawyers filed an appeal in the Supreme Court last month, asking a fundamental question: "Does the president have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?"

The administration says there is no need to answer that question just now. President Bush, in a directive signed on Sunday and made public yesterday, ordered the Defense Department, which had been holding Mr. Padilla as an "enemy combatant," to transfer him to the Justice Department "for the purpose of criminal proceedings against him."

That move, the administration says, renders Mr. Padilla's appeal to the Supreme Court moot.

The Supreme Court has already accepted one case this month concerning the scope of the president's power to fight terror. That one involves whether he has the authority to try detainees held at Guantánamo Bay, Cuba, for terrorist offenses before military commissions there. The administration had vigorously urged the court not to hear the case.

Last year, in three cases involving detainees accused of terrorism, the court ruled that people held at Guantánamo and those designated by the president as enemy combatants had the right to challenge their detentions in the courts or before a "neutral decision maker."

The question of how that should work has engaged all three branches of the government. The lower courts have offered varying answers to the administration's narrow interpretation of the decisions. Congress, too, may add its voice, through pending legislation that would limit some detainees' access to the federal courts.

The Padilla case illustrates the seemingly improvised and reactive nature of the administration's strategy. The government initially held Mr. Padilla as a material witness, after detaining him at a Chicago airport in May 2002. When it feared that a federal judge would determine that indefinite detentions of material witnesses were unlawful, it designated him as an enemy combatant in June of that year.

Yesterday, after Mr. Padilla spent more than three years in a Navy brig, the government decided to charge him as a criminal.

The accusations against Mr. Padilla have changed, too. He was initially held on suspicion of planning to detonate a radioactive device in the United States. But the charges unsealed yesterday concerned supporting terrorism abroad.

That progression was a natural one, said John Yoo, a former Justice Department official who played a central role in formulating the administration's approach.

"Whatever benefits would have been gained by interrogating him are now gone," said Professor Yoo, who teaches law at the University of California, Berkeley.

The timing of the government's decision to charge Mr. Padilla is nonetheless suggestive.

"They obviously saw that their position is untenable," Eric M. Freedman, a law professor at Hofstra University who has consulted with Mr. Padilla's legal team, said of the government.

Jonathan M. Freiman, a lawyer for Mr. Padilla, said his client would continue to seek Supreme Court review even though the government's position was that the enemy combatant case was now moot.

The government could redesignate Mr. Padilla as an enemy combatant if he was found not guilty at his criminal trial. As long as the government does not disclaim that right, Mr. Freiman said, the case is, in the legal jargon, "capable of repetition yet evading review" and so not moot. He added that the government refused to rule out that possibility yesterday.

"It's a power they claim to have not only over my client, but every American citizen," Mr. Freiman said. "They can seize anyone, anywhere."

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled against Mr. Padilla in September, reversing a trial judge who had ordered him freed. The court framed the issue in a different way.

"The exceedingly important question before us," Judge J. Michael Luttig wrote for a unanimous three-judge panel, "is whether the president of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with Al Qaeda, an entity with which the United States is at war."

The answer, Judge Luttig said, was yes, citing the powers granted to the president by Congress after the Sept. 11 attacks.

Professor Yoo said that the government necessarily had to react to decisions from the courts. "You do see a lot of uncertainty," he said, "with a lot of people scrambling to see what the federal courts will do."

Geoffrey R. Stone, a law professor at the University of Chicago, said the administration's decision to charge Mr. Padilla with a crime, after he had been held "incommunicado" for this long, was a momentous one.

"The most interesting question now is whether the government will finally permit Padilla to say whatever he has to say," Professor Stone said, "both about his own culpability and about what's happened to him over the past three years."

    Still Searching for a Strategy Four Years After Attacks, NYT, 23.11.2005, http://www.nytimes.com/2005/11/23/national/nationalspecial3/23legal.html

White House Says

Alito Was Assuring on Districting

November 23, 2005
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Nov. 22 - Moving to defend the Supreme Court nominee Samuel A. Alito Jr. against attacks on his stance on civil rights, the White House said Tuesday that he had assured senators last week of his commitment to the principle of one person one vote.

"Judge Alito believes and has told senators that he believes 'one man one vote' is bedrock principle," Steve Schmidt, a White House spokesman, said Tuesday.

The White House has previously declined to comment publicly on the conversations its court nominees have in meetings with senators, and its unusual statement is part of a strategic tug of war between the administration and its liberal opponents over the direction of the debate on the Alito nomination. Liberal groups are seeking to broaden their criticisms of Judge Alito from the issue of abortion rights to a more wide-ranging discussion that includes civil rights and police searches.

Democrats began raising questions about Judge Alito's position on the principle of one person one vote last week after the disclosure that in a 1985 memorandum seeking a promotion in the Reagan administration he expressed strong disagreement with the Warren Court's landmark reapportionment cases. The cases, most notably Baker v. Carr in 1962 and Reynolds v. Sims in 1964, required states to draw electoral districts with equal populations, preventing the creation of uneven districts that dilute the representation of black voters.

In his 1987 confirmation hearings, Judge Robert H. Bork's disagreement with the cases became a focus of the opposition that led to the rejection of his Supreme Court nomination, and on Sunday, Senator Joseph R. Biden Jr., a Delaware Democrat on the Judiciary Committee, said Judge Alito's statements had increased the chances that Democrats might block a confirmation vote.

If Judge Alito questioned the one-person-one-vote principle, Mr. Biden said in an interview on the Fox News Channel, "Clearly, you'll find a lot of people, including me, willing to do whatever they can to keep him off the court."

Moving quickly to cut off such speculation, conservative allies of the White House began spreading secondhand reports Monday that Judge Alito already affirmed the one-person-one-vote doctrine last week in his meetings with senators.

Still, Senator Ken Salazar, Democrat of Colorado and a member of the so-called Gang of 14 senators who prevented a stalemate over judicial nominations earlier this year, said last week that he questioned Judge Alito directly about that issue and was not satisfied with the answer. A spokesman for Mr. Salazar, Cody Wertz, said Monday that the senator still considered Judge Alito's answers ambiguous.

Senator Edward M. Kennedy, a Massachusetts Democrat on the Judiciary Committee, also said he discussed the same issues with Judge Alito, but Stephanie Cutter, a spokeswoman for Mr. Kennedy, declined to comment on the content of their talk.

"The White House is not entitled to cherry-pick facts out of these private conversations when they need to put out a fire," Ms. Cutter said.

Separately, the Fox News Channel declined to show an advertisement produced by a liberal coalition that includes People for the American Way, the N.A.A.C.P. and Naral Pro-Choice America. The network questioned the accuracy of the commercial's use of the words "ruling" or "voted" to refer to a dissenting opinion Judge Alito wrote while on the United States Court of Appeals for the Third Circuit. Irena Briganti, a spokeswoman for Fox News, said the network had also rejected conservative commercials for inaccuracy.

The coalition declined to re-edit its commercial and accused Fox News of political bias.

Christa Robinson, a spokeswoman for CNN, said the network was running the commercial.

Also, Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, sent Judge Alito a letter chiding him for not yet having turned in his answers to a judicial questionnaire the Senate sent him on Nov. 10. "Ten days has provided adequate time for other Supreme Court nominees to respond to the committee since the 1980's," Mr. Leahy wrote.

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the committee, said the committee gave the White House a deadline of Dec. 1. But Mr. Specter said the committee emphasized completing the questionnaire thoroughly and "as promptly as possible."

    White House Says Alito Was Assuring on Districting, NYT, 23.11.2005, http://www.nytimes.com/2005/11/23/politics/politicsspecial1/23alito.html

Alito Often Ruled for Religious Expression

November 21, 2005
The New York Times
By NEIL A. LEWIS

WASHINGTON, Nov. 20 - Judge Samuel A. Alito Jr. has compiled a brief but unmistakable record, lawyers and analysts say, that makes him a leader in the camp of conservative theorists and judges who believe federal courts have been too quick to limit religious activities in public life.

During his 15 years sitting in Newark as a member of a federal appeals court, Judge Alito has sided almost uniformly with those who have complained vigorously in recent years that zealousness in enforcing the Constitution's separation of church and state has unfairly inhibited religious practices.

Judge Alito, President Bush's nominee for the Supreme Court, has ruled in favor of allowing local governments to set up Nativity scenes alongside nonreligious symbols and ruled against a school district that wanted to prevent an evangelical group from sending home fliers to elementary school children. He has also ruled in favor of Muslim police officers in Newark who said the department's policy against wearing beards violated their religious rights. Both supporters and opponents say he has the potential to become the most aggressive supporter of religious liberty on the court, moving it toward greater deference to religious practices.

"He is inclined to the view of the First Amendment that the government is not intended to be hostile to religion," said Douglas W. Kmiec, a law professor at Pepperdine University in California. "It is intended to be accommodating when it can."

Professor Kmiec, a former Justice Department colleague of Judge Alito's, is a leading proponent of the "religious liberty" argument pressed by social conservatives, which advances the view that the Constitution allows for a greater presence of religion in the public sphere than courts have previously allowed. This stream of argument has largely involved issues like prayer at school functions, the display of religious symbols at Christmastime and public financing of programs run by religious groups.

Judge Alito has not had an opportunity to rule on a case involving the use of public money by religious organizations, an area of contention in recent years. The debate about the separation of church and state is sometimes organized along two distinct phrases in the First Amendment, which says that Congress "shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." The first phrase is known as the Establishment Clause, while the second is called the Free Exercise Clause.

One case involving Judge Alito that illustrates the potential tension between the two clauses occurred in 1996 when a New Jersey school board sought to have students vote on whether to have a prayer at the high school graduation. The Black Horse Pike Regional Board of Education had previously allowed prayers at the high school graduation, but the policy had to be changed after the Supreme Court ruled in 1992 that prayers by a rabbi at a Rhode Island middle school graduation violated the First Amendment.

The New Jersey board members hoped that by putting the issue to a student vote, the courts would find any prayers did not violate the Establishment Clause because they were not mandatory. In an 11-to-4 ruling, the full United States Court of Appeals for the Third Circuit ruled against the school board. Judge Alito joined the dissent that asserted the court majority was improperly infringing on the rights of students to exercise their religion.

Eliot Mincberg, the legal director of People for the American Way, a liberal advocacy group, said Judge Alito's record demonstrates that he was "very solicitous when it comes to protecting the right of an individual to practice his religion, but not so solicitous of the right of people to be free of government-supported religion."

In 2000, the Supreme Court revisited the issue in a Texas case, Santa Fe v. Doe, and rejected, 6 to 3, a similar plan in which the students voted on whether to have prayers during football games. Justice Sandra Day O'Connor, whose seat Judge Alito would fill, voted with the majority. The dissenters in that case whose reasoning paralleled Judge Alito's were William H. Rehnquist, the chief justice at the time, and Justices Antonin Scalia and Clarence Thomas.

Last year, in writing an opinion upholding the right of an evangelical organization to distribute its materials in some New Jersey elementary schools, Judge Alito sought to distinguish the Santa Fe case. He said the Supreme Court's six-member majority had ruled that some students, like players and cheerleaders, were required to attend the games while others may have felt peer pressure to participate in the prayers.

But he said that distribution of religious fliers by the Child Evangelism Fellowship of New Jersey urging students to attend Good News Club meetings "would not result in any similar pressure to participate in a religious activity." Judge Alito said in his ruling that the school board had engaged in impermissible "viewpoint discrimination" in banning the evangelical literature because it allowed pamphlets from other groups like the Boy Scouts. He said that if the school board worried that people might think it had endorsed the religious fliers, "teachers could explain the point to the students."

In another case involving the Free Exercise Clause, Judge Alito wrote in 1999 that the Newark Police Department could not prohibit two Muslim officers from having beards for religious reasons because it had made exceptions to its appearance code by allowing some officers with skin problems to have beards. Lawyers said that Judge Alito also ruled against a Pennsylvania statute requiring hunting fees as it applied to an American Indian who said it was part of his religion.

Judge Alito's most widely cited Establishment Clause ruling was his 1999 decision rejecting a challenge by the American Civil Liberties Union to a holiday display of a Nativity scene and a menorah mounted by Jersey City officials. The issue was whether the inclusion of plastic replicas of Santa Claus and Frosty the Snowman in the display had satisfied a Supreme Court opinion that such displays could be legal if they were not centered on religion.

In a 2-to-1 decision, which he wrote, Judge Alito rejected the argument that including the nonreligious statues was a ploy to win acceptance and cited in great detail the size and relative prominence of those statues.

Nathan J. Diament, the public affairs director for the Union of Orthodox Jewish Congregations, said Judge Alito's record demonstrated "a deep understanding" of the Free Exercise Clause. Mr. Diament mentioned Judge Alito's concurrence in a ruling allowing a Jewish teacher at William Paterson College in New Jersey to go forward with a lawsuit accusing the school administration of trying to force her out by scheduling events on Friday evenings. "He didn't just agree that the suit should go forward," Mr. Diament said. "He went out of his way to express his philosophy on the need to accommodate religious individuals."

    Alito Often Ruled for Religious Expression, NYT, 21.11.2005, http://www.nytimes.com/2005/11/21/politics/politicsspecial1/21religion.html

Nominee's Fans and Foes Localize the Debate

November 21, 2005
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Nov. 20 - Judge Samuel A. Alito Jr. may not be a household name outside the nation's capital, but as senators return home for the Thanksgiving recess, interest groups on both sides of the battle over his Supreme Court nomination are doing everything they can to bring it up in far-flung places.

On Sunday, parishioners at the predominantly black Greater New Mt. Moriah Baptist Church in Detroit found attacks on Judge Alito's civil rights record tucked into their church bulletin, courtesy of People for the American Way. The group is distributing 15,000 fliers to African-American churches in 12 states.

In Palm Beach, Fla., Planned Parenthood recently held a cocktail party called "Cocktails for the Cause: Veto Alito," liberal organizers said. In Tallahassee, the African-American sorority Delta Sigma Theta at Florida A&M is planning a "Supreme Court Jeopardy" contest modeled on the game show. A college student group that mixes pop music and politics will be holding a "Honk and Wave" event, demonstrating during rush hour near the state Capitol to call attention to the cause.

On the other side, shoppers at Giordano's Produce at the Italian Market in Philadelphia were treated last Friday to speeches about Judge Alito's ethnic heritage and judicial wisdom by officials of the National Italian American Foundation and several Italian-American jurists. Their presentation was organized in part by Progress for America, a conservative group close to the White House.

On Monday, some of Judge Alito's former clerks will attest to his merits at an event in Portland, Me., part of a cross-country campaign by former Alito clerks organized by Progress for America. In North Dakota, conservatives recently enlisted former Gov. Edward T. Schafer to lead a campaign on behalf of the judge, and in Arkansas a delegation of socially conservative pastors are pressing the state's two moderate Democratic senators to support Judge Alito, said Gary Marx, executive director of the Judicial Confirmation Network, a conservative group coordinating local efforts in selected states.

The Alito nomination has set off the lobbying war that failed to materialize earlier this year after President Bush's nominations of John G. Roberts Jr. or Harriet E. Miers. Interest groups are raising and spending money far more actively than at any time since the 1987 fight over the nomination of Judge Robert H. Bork.

Part of the reason is Judge Alito's long record, which has given liberals much to attack and conservatives much to support. Both sides have also grown in sophistication and resources since the Bork battle, from their online networks to their networks of churches. The early focus on local lobbying also reflects the timing of the confirmation schedule, with lawmakers headed to their home states for the holidays.

Although the two national political parties are involved, the Republican organization is far more engaged. The party is already closely involved "in the hand-to-hand combat going on in the states," encouraging state party chairmen to write letters to the editors and circulating information to local conservative talk radio shows, said Brian Jones, a spokesman for the Republican National Committee.

Their main targets are the half-dozen Democratic senators from states President Bush carried in the last election. When Senator Ken Salazar, Democrat of Colorado, expressed doubts about Judge Alito after meeting with him Thursday, for example, both Ken Mehlman, the national party chairman, and Bob Martinez, the state party chairman, gave a barrage of radio, television and newspaper interviews attacking the senator for "partisan pandering," as Mr. Martinez put it.

Many Democrats have their minds on other issues, most notably Iraq, said Josh Ernest, a spokesman for the party's national committee. At thousands of "house parties" last week, Democratic organizers did not hear much talk about the judge. "The way the administration has misled our country into war is dominating the political debate right now," Mr. Ernest said.

Both sides say they see an advantage in the holiday season. For liberal groups, the holiday breaks in the Senate session slow down the process, giving them more time to make their case and lobby senators while they are at home.

Conservatives, on the other hand, say they hope to capitalize on the context of the holiday season by calling attention to Judge Alito's decisions supporting public displays of religion at time when disputes often arise over Nativity scenes and other Christian symbols in schools and public places.

On Jan. 8, the day before the confirmation hearings are to begin, a coalition of Christian conservative groups will rally support for confirmation with the latest in a series of "Justice Sunday" telecasts to churches and Christian radio and television broadcasters. This one will be transmitted from an African-American megachurch in Philadelphia whose pastor, Herbert Lusk, is a prominent supporter of President Bush.

"We will be doing everything we can to amplify the voice of the left that tries to drown out tolerance at this time of the year when Christians celebrate Christmas," said Tony Perkins, president of the Christian conservative Family Research Council and an organizer of the event. To fire up conservative Christians, he said, "I couldn't coordinate this any better."

Advocacy groups on both sides are also taking advantage of the two months before the January confirmation hearings to raise money through direct mail and, especially, e-mail to their supporters.

People for the American Way declares on its Web site, "Stop Alito! Support our ad!" And some unlikely groups are entering the fray. Last week, the Free Enterprise Fund, a limited-government group, sent its members a letter calling Judge Alito their kind of nominee and seeking to raise $1.6 million for "saturation" advertising in targeted locations. Maine and Arkansas are listed as "Most Bang for Your Buck," while Virginia and others are considered "expensive but important."

    Nominee's Fans and Foes Localize the Debate, NYT, 21.11.2005, http://www.nytimes.com/2005/11/21/politics/politicsspecial1/21confirm.html

Biden:

Chance of filibuster on Alito stronger

Sun Nov 20, 2005 12:53 PM ET
Reuters

WASHINGTON (Reuters) - The chance of a filibuster to halt the Supreme Court nomination of Judge Samuel Alito rose on news he once opposed 1960s Supreme Court rulings on reapportionment based on the principle of equal voting rights, a top Democrat on the Senate judiciary panel said on Sunday.

Sen. Joseph Biden, a Democrat from Delaware, told Fox News Sunday that a decision by Democrats to filibuster would depend largely on Alito's answers during judiciary committee questioning scheduled for January.

In a 1985 application to be a deputy assistant attorney general disclosed last week, Alito wrote that he disagreed with reapportionment decisions by the Supreme Court under Chief Justice Earl Warren in the early 1960s.

Prior to the Warren court's decisions, some state legislators were elected on a geographical basis, giving thinly populated rural areas more political heft than urban centers.

"If he really believes that reapportionment is a questionable decision -- that is, the idea of Baker vs. Carr, one man, one vote -- then clearly, clearly, you'll find a lot of people, including me, willing to do whatever they can to keep him off the court. We don't know that. We have to hear it," Biden said. "That would include a filibuster if need be."

Asked if this increased the chances of a filibuster, Biden said: "Well, I think based upon that job application where he said he strongly held these views, yes."

    Biden: Chance of filibuster on Alito stronger, R, 20.11.2005, http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=2005-11-20T175327Z_01_MOL062681_RTRUKOC_0_US-USA-COURT-ALITO-BIDEN.xml

Before Supreme Court,

Alito Had Winning Record

November 20, 2005
The New York Times
By ADAM LIPTAK

Oral argument in the United States Supreme Court may be the toughest assignment in American law. It requires weeks if not months of intensive preparation, intimate familiarity with an often sprawling paper record, and the ability to anticipate and finesse the barrage of sometimes eccentric questions from the justices.

Judge Samuel A. Alito Jr., President Bush's nominee for the court, argued 12 cases there, losing 2. He was fully prepared for 11 of them. In his most important and hardest argument, though, he was pinch-hitting on two days' notice.

The reviews of that argument, in 1984, were nonetheless excellent. "Disputes over the First Amendment are so important, and so often botched, that it's always a relief to hear one argued well," Jim Mann wrote in The American Lawyer. "Alito handled himself particularly well under questioning from the court."

Judge Alito, then a relatively junior government lawyer, was filling in for Paul M. Bator, a deputy solicitor general who was a renowned constitutional scholar and a masterly oral advocate, after a death in Mr. Bator's family.

"This guy Sam Alito, who I'd never heard of, stepped in just before the argument," said the lawyer on the other side, Fredric D. Woocher. "He did a wonderful job, even though he lost."

The case concerned one of the more difficult questions in constitutional law. What rights can the government require people to give up in exchange for federal money? The Supreme Court will grapple with the question again next month.

In the case that Mr. Alito argued, the Supreme Court ruled, 5 to 4, that public television and radio stations that received federal financing could not be forbidden to editorialize.

In a case to be heard on Dec. 6, the court will consider the similar question of whether universities that receive federal money have to allow military recruiting on campus even though they object to the military's policies on homosexuality.

In both cases, the government took the position that he who pays the piper picks the tune.

Mr. Alito's case, Federal Communications Commission v. League of Women Voters, had a tangled history. The Carter administration had declined to fight the suit, which challenged the ban on editorials. That administration agreed with the plaintiffs that the ban violated the First Amendment. The Reagan administration reversed course.

Still, said Bruce Fein, who was then the F.C.C. general counsel, "I thought the statute violated the First Amendment."

The Justice Department defended the law, Mr. Fein said, only because it is charged with defending every law enacted by Congress in all but the most exceptional circumstances.

That four justices supported Mr. Alito's position was a significant accomplishment, legal experts said.

In his argument, Mr. Alito, then 33, emphasized the limited nature of the restriction and the importance of the interests it served.

The law, he told the justices, "doesn't interfere with any expression of views, but it says that a public station using public money cannot put its official stamp of approval on any particular view or candidate."

"If a public station wanted to have their equivalent of Eric Sevareid or David Brinkley," he said, "I see no reason why they couldn't do that."

Allowing public broadcasters to editorialize, Mr. Alito went on, "creates the danger that the station will be used as an outlet for government propagandizing, and I think that one of the things that the First Amendment tries to prevent is government at any level drowning out private voices in the media."

Mr. Woocher, in an argument that also drew praise from The American Lawyer, said the law "very straightforwardly and unabashedly suppresses speech of the highest order in our constitutional framework."

A variation on the question presented in the 1984 case is now before the Supreme Court. A federal law known as the Solomon Amendment requires universities that receive federal money to allow the military to recruit on campus. But many law schools prohibit or limit recruiting by employers who discriminate on the basis of sexual orientation.

The United States Court of Appeals for the Third Circuit, the court on which Judge Alito sits, ruled last year that the Solomon Amendment violated the schools' First Amendment rights. Allowing the military to recruit on campus, a divided three-judge panel held, would suggest that the schools endorsed the military's "don't ask, don't tell" policy on homosexuality. Judge Alito was not on the panel.

Mr. Alito's 11 other Supreme Court arguments were more routine. But his arguments generally received high marks.

"He came hot out of the box," said David B. Frohnmayer, who was on the same side as Mr. Alito in a double-jeopardy case. "He got his argument out front fast, so that when he got questions he was able to hang his answers on the framework he'd set out."

Jacques E. Soiret, who lost a Freedom of Information Act case about access to military records to Mr. Alito, said he had feared that Mr. Alito would rely on appeals to patriotism.

But Mr. Alito "argued it the right way," scoring points on the law rather than on emotion, Mr. Soiret said. "I thought he took the high road."

But Mr. Alito did not always make much of an impression on the lawyers he argued against. "Neither my argument nor his argument was inspired," said Steven A. Hitov, who lost a 1984 argument over food stamp benefits. "Nor did it have much to do with the outcome of the case."

But Cecil Davenport remembered his encounter with the future nominee in a 1983 labor relations case quite distinctly. It was Mr. Alito's fourth argument in the Supreme Court and Mr. Davenport's first.

"It's the most nerve-racking, awe-inspiring situation you ever saw in your life," Mr. Davenport, now retired to Florida, said of arguing in the Supreme Court.

Mr. Alito had not been involved in the case as it wound its way up from the lower courts, which is typical for lawyers in the solicitor general's office. But Mr. Davenport, who described himself as "an ordinary attorney out in the sticks" of Louisville, Ky., thought his familiarity with the case gave him an advantage.

And indeed, he won the case, by a vote of 6 to 3. It was Mr. Davenport's only Supreme Court argument and one of the two arguments Mr. Alito lost outright. He also was involved in two mixed decisions.

"I would like to say to you that it was all because I was brilliant," Mr. Davenport said, "but it wasn't so. He was picked to argue that case cold. He was a professional, and he came in solely to argue the case before the Supreme Court. I had the advantage of arguing it from Day 1."

As for Mr. Alito, Mr. Davenport said, "He exhibited even then a remarkable understanding of the law."

    Before Supreme Court, Alito Had Winning Record, NYT, 20.11.2005, http://www.nytimes.com/2005/11/20/politics/politicsspecial1/20alito.html

Debate in Senate on Alito

Heats Up Over '85 Memo

November 17, 2005
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Nov. 16 - The debate over the Supreme Court nomination of Judge Samuel A. Alito Jr. escalated into a full-fledged fight in the Senate Wednesday as top Democrats sounded new alarms about his approach to the law and Republicans warned that any effort to block a vote on him would be "outrageous."

Partisans on both sides of the nomination were reinvigorated by the disclosure this week of a 1985 memorandum from Judge Alito when he was a member of the Reagan administration and was seeking a promotion. In the memorandum, he professed his strong support for a conservative legal approach to abortion, affirmative action and limits on federal power over the states.

"A picture of Sam Alito is emerging that may explain why the right wing is popping champagne corks," said Senator Harry Reid of Nevada, the Democratic leader, taking a sharply critical tone in his first speech about the nomination on the Senate floor. "We don't have to guess whether Judge Alito's description of himself in that memo would predict what kind of judge he would be. For the past 15 years, Judge Alito has been one of the most conservative federal judges in the country."

Mr. Reid's criticism was quickly followed by floor statements from Senator Edward M. Kennedy of Massachusetts and Senator Charles E. Schumer of New York, both prominent Democrats on the Judiciary Committee. They spoke a day before a coalition of liberal groups is expected to announce plans for a national television advertising campaign opposing confirmation.

A conservative group, Committee for Justice, is expected to announce Thursday its own radio and television campaign attacking one of the leading liberal groups, People for the American Way, for its stands on issues like same-sex marriage, flag burning and the recitation of "under God" in the Pledge of Allegiance.

Mr. Reid also took aim at a vow by Senator Bill Frist of Tennessee, the Republican leader, that if Democrats stopped Judge Alito's nomination with a filibuster - blocking the 60 votes needed under Senate rules to end debate - he "will not hesitate" to deploy a procedural tactic to eliminate the 60-vote requirement, a move known as "the nuclear option."

"If members of the Democratic minority persist in blocking a vote on Alito's nomination, the Senate will have no choice," Mr. Frist wrote in an opinion column published on Nov. 9 in The Chicago Tribune.

Mr. Reid fired back Wednesday in his floor speech. "The majority leader should put his sword back in its sheath," Mr. Reid said, calling Mr. Frist's warnings "idle threats." It is "silly" to debate the idea two months before confirmation hearings, he said.

Still, Mr. Reid has refused to rule out a filibuster, and the coordinated floor speeches also laid the groundwork for the unified opposition that a filibuster would require.

"It sounds like the fight is on," said Senator John Cornyn, a Texas Republican on the Judiciary Committee.

Mr. Cornyn said Judge Alito's 1985 memorandum should be irrelevant to his confirmation. "That is the whole point," the senator said. "Judges aren't supposed to impose their personal views from the bench, and I believe he has got a demonstrated track record of not doing so."

Senator Kay Bailey Hutchison, Republican of Texas, said on the floor that the Democrats had implied a threat to filibuster and called it "outrageous." She defended Judge Alito's devotion to a neutral reading of the law, apparently referring to his 1985 memorandum to argue that "he has even gone against what are his stated personal beliefs to adhere to precedent."

In his floor speech, however, Mr. Schumer said that confirmation was far from "a foregone conclusion" and that he found a "troubling pattern" in Judge Alito's decisions.

"In case after case after case, Judge Alito gives the impression of applying meticulous legal reasoning, but each time he happens to reach the most conservative result," Mr. Schumer said.

He cited Judge Alito's rulings in cases involving the scope of federal regulatory power, police searches, sex and race discrimination claims, and abortion rights.

"Every Supreme Court nominee has a high burden," Mr. Schumer said, adding that "for Judge Alito, that burden is triply high" in part because he would succeed Justice Sandra Day O'Connor who has been the court's swing vote on social issues.

Mr. Kennedy expressed concern that in his 1985 memorandum Judge Alito had cited as a major influence Barry Goldwater's 1964 campaign, which Mr. Kennedy said "featured strong opposition to civil rights." For the 20 years before Judge Alito wrote that memorandum, the senator said, "he had been a dedicated right-wing advocate."

Steve Schmidt, a spokesman for the White House, dismissed the accusations as predictable, and said that they "distorted Judge Alito's written opinions to such a degree that they are no longer recognizable."

Judge Alito, meanwhile, continued to face questions about his 1985 memorandum in his meetings with senators, and on Wednesday he met some skepticism.

"He said he was 35 when he wrote that," said Senator Joseph R. Biden Jr., Democrat of Delaware, after meeting with the judge. "I pointed out I had been a senator for five years when I was 35. No one says to me, 'Well, what you said in 1974 as a senator we can just forget.' "

Senator Olympia J. Snowe of Maine, one of the handful of Republicans who support abortion rights, said Judge Alito "did not repudiate" the memorandum. She said he had sought to reassure her by acknowledging that the court had affirmed the essential holding of the landmark abortion rights case Roe v. Wade many times since then.

How much he would respect those precedents "is the major question," Ms. Snowe said, adding that she would vote against him if she thought he would overturn the Roe decision.

    Debate in Senate on Alito Heats Up Over '85 Memo, NYT, 17.11.2005, http://www.nytimes.com/2005/11/17/politics/politicsspecial1/17confirm.html

Nominee Plays Down

Remarks on Quotas and Abortion

November 16, 2005
The New York Times
By SHERYL GAY STOLBERG and DAVID D. KIRKPATRICK

WASHINGTON, Nov. 15 - Seeking to tamp down a political uproar over a 1985 document in which he denounced racial quotas and said the Constitution did not protect the right to abortion, Judge Samuel A. Alito Jr. told senators on Tuesday that the sentiments were simply the views of "an advocate seeking a job."

The document, an application for a promotion within the Reagan administration, could complicate Judge Alito's nomination for the Supreme Court, opening him up to questions during his confirmation hearings about his personal views on the politically sensitive issues of abortion and civil rights. Other nominees have been able to dodge such questions, but both Republicans and Democrats said Tuesday that Judge Alito might be unable to do so.

The application's release by the White House on Monday came as liberal advocacy groups were preparing a major television campaign against the Alito nomination. By Tuesday, the groups were already at work on an advertisement that will use the application against Judge Alito, said Ralph G. Neas, president of the liberal advocacy organization, People for the American Way.

"Like Robert Bork in 1987," Mr. Neas said, "his own words are the best evidence of how and when he embraced the agenda of the radical right."

A coalition of liberal organizations, including Mr. Neas's group, is set to meet Thursday with the Senate Democratic leader, Harry Reid of Nevada, to discuss the nomination - the first time the groups and Mr. Reid have met to talk about Judge Alito.

While the groups plotted strategy, the nominee tried to play down the importance of the 1985 job application as he met with senators, including two prominent Democrats on the Judiciary Committee.

"He said first of all it was different then," said one of the two, Senator Dianne Feinstein of California. "He said, 'I was an advocate seeking a job, it was a political job and that was 1985. I'm now a judge. I've been on the circuit court for 15 years, and it's very different. I'm not an advocate; I don't give heed to my personal views. What I do is interpret the law.' "

Mrs. Feinstein said she thought the judge was being "very sincere" and described him as "clearly well-steeped in the law."

The only woman on the judiciary panel, Mrs. Feinstein has said that she feels a special obligation to protect the right to abortion, and that she would not vote to confirm a Supreme Court candidate if she believed the nominee would overturn Roe v. Wade, the landmark 1973 abortion rights decision. She made similar statements about Chief Justice John G. Roberts Jr., and then voted against his confirmation, partly over the abortion issue.

A second committee Democrat, Senator Edward M. Kennedy of Massachusetts, sounded skeptical of Judge Alito's assurance that the 1985 document should not be given great weight because it was an application for a political job. "And so I asked him, 'Why shouldn't we consider the answers that you're giving today an application for another job?' " Mr. Kennedy said.

He added: "He had indicated that he is an older person that has learned more, that he thinks he is a wiser person, that he has got a better grasp and understanding of constitutional rights and liberties."

Whether Democrats have an appetite to block the nomination by filibuster is unclear. A number of Senate Democrats, as well as leading Republicans, have said a filibuster is unlikely, but at least one influential conservative organizer, Paul Weyrich, founder of the Free Congress Foundation, said on Tuesday that he was not convinced.

"I do not believe all the happy talk that the Republicans have been putting out that, 'Oh, the meetings are going so well and everything is going great and there won't be a filibuster' and all of this," Mr. Weyrich said in an interview.

In the 1985 application, Judge Alito said he was "particularly proud" of his work on cases in which the Reagan White House had argued "that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to abortion."

He said he was motivated to study constitutional law in part because of his disagreements with the Warren Court, which during the 1950's and 1960's issued rulings desegregating schools and expanding voting rights.

Judge Alito also mentioned membership in the Federalist Society, the conservative legal group, and in another group, Concerned Alumni of Princeton, founded in 1972 to oppose coeducation. On Tuesday, liberal groups dispatched researchers to look into the alumni organization and Judge Alito's role in it.

The group published a magazine, Prospect, and copies on file at the university library include articles that criticized Princeton for using student health fees to pay for abortions, for tolerating homosexuality and for supporting affirmative action policies.

The magazine also complained about Princeton officials for pressing the university's all-male student "eating clubs" to admit women.

Andrew P. Napolitano, a commentator for Fox News and a Princeton classmate of Judge Alito's who served on the organization's advisory board, said he did not recall his playing an active role in the group.

But a former student, Sally Frank, who filed a 1979 lawsuit to open the clubs to women and became a target of attacks by the magazine, said she was alarmed that Judge Alito "took credit" for the group.

Richard Lezin Jones contributed reporting for this article.

    Nominee Plays Down Remarks on Quotas and Abortion, NYT, 16.11.2005, http://www.nytimes.com/2005/11/16/politics/politicsspecial1/16confirm.html

Daryl Cagle

cartoon

15.11.2005

http://cagle.msnbc.com/politicalcartoons/

Alito Downplays '85 Abortion Statement

November 15, 2005
Filed at 12:05 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- Supreme Court nominee Samuel Alito distanced himself Tuesday from his 1985 comments that there was no constitutional right to abortion, telling a senator in private that he had been ''an advocate seeking a job.''

Sen. Dianne Feinstein, D-Calif., an abortion rights supporter and the only woman on the Senate Judiciary Committee, said she asked the conservative judge about a document released Monday showing Alito in 1985 telling the Reagan administration he was particularly proud to help argue that ''the Constitution does not protect a right to an abortion.''

''He said first of all it was different then,'' she said. ''He said, 'I was an advocate seeking a job, it was a political job and that was 1985. I'm now a judge, I've been on the circuit court for 15 years and it's very different. I'm not an advocate, I don't give heed to my personal views, what I do is interpret the law.'''

When asked whether she found his answer satisfactory, Feinstein said: ''The question is, Did I believe he was being absolutely truthful, and I did.''

Alito did not respond to reporters' questions about the document before meeting Feinstein. ''I'm just here to speak with Sen. Feinstein,'' Alito said.

After the meeting, Feinstein said Alito ''was very sincere, he was very direct in answering my questions, he clearly is well-steeped in the law, has a good mind, is an able thinker.''

Alito's abortion statement is expected to be the topic of conversation with senators during his Tuesday visits.

The 1985 document, released by the Ronald Reagan Presidential Library on Monday, shows a young Alito applying to become deputy assistant attorney general and saying his previous government work had included helping ''to advance legal positions in which I personally believe very strongly.''

''I am particularly proud of my contributions in recent cases in which the government argued that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion,'' wrote Alito, who was then working for the solicitor general's office.

Alito's supporters say there's nothing surprising in that statement.

He ''joins a long list of jurists who have written that Roe'' -- the 1973 Supreme Court ruling legalizing abortion -- ''was wrongly decided,'' said Sen. John Cornyn, R-Texas, a Judiciary Committee member.

''The question is whether he will put his personal views aside as any judge should and base his rulings on what the Constitution says,'' he added. ''His long track record as a federal appeals court judge shows that he has indeed put his personal views on abortion aside, and I have every confidence he will continue to do so.''

President Bush picked Alito after White House counsel Harriet Miers withdrew her Supreme Court nomination when confronted by withering criticism by some conservatives.

''This may explain why the right wing expressed such enthusiastic support for Judge Alito after campaigning against Harriet Miers,'' said Sen. Edward Kennedy, D-Mass., a Judiciary Committee member and one of several senators who will meet with Alito privately on Tuesday.

Alito would replace retiring Justice Sandra Day O'Connor, who has been a deciding vote on abortion on the Supreme Court. Alito's opponents fear that he and recently confirmed Chief Justice John Roberts would swing the Supreme Court to the right and lead to overturning Roe v. Wade.

Alito, 55, has told senators in his two weeks of private meetings that he has ''great respect'' for Roe v. Wade as a precedent, but he did not commit to upholding it.

Some abortion rights groups already have come out against Alito because of his work as a federal appellate judge, including a dissent on an appeals court decision striking down a law requiring women seeking abortions to notify their spouses.

But White House spokesman Steven Schmidt said Alito's 15 years as a judge on the 3rd U.S. Circuit Court of Appeals shows ''a clear pattern of modesty, respect for precedent and judicial restraint.''

Alito also wrote in the document that he believed ''very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement and the legitimacy of a government role in protecting traditional values.''

Kennedy wrote to Alito on Monday questioning his explanations for ruling on a Vanguard case after telling the committee in 1990 that he would recuse himself from cases involving that company. Alito holds six-figure investments with Vanguard.

In a Thursday letter, Alito told senators he was ''unduly restrictive'' in promising to avoid Vanguard's appeals cases, and he did not believe he was required to disqualify himself on the basis of ownership of shares in a mutual fund. The White House has added that there was a computer glitch that allowed the disqualification issue to slip through undetected.

------

Associated Press reporter Erica Werner contributed to this report.

On the Net:

Supreme Court: http://www.supremecourtus.gov

Senate Judiciary Committee: http://judiciary.senate.gov/

    Alito Downplays '85 Abortion Statement, AP, 15.11.2005, http://www.nytimes.com/aponline/national/AP-Alito.html?hp&ex=1132117200&en=41fa7aadd005aeac&ei=5094&partner=homepage

Dwane Powell

North Carolina, Raleigh News & Observer        Cagle        16.11.2005

http://cagle.msnbc.com/politicalcartoons/PCcartoons/powell.asp

'85 Document Opens Window to Alito Views

November 15, 2005
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Nov. 14 - Applying for a promotion in the Reagan administration 20 years ago, Samuel A. Alito Jr., then an assistant to the solicitor general, described himself as a thoroughgoing conservative "particularly proud" of his contributing to cases arguing "that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

The job application, disclosed on Monday by the White House and first reported by The Washington Times, provides a new window into the deeply conservative roots of the legal views held at the time by Judge Alito, now a Supreme Court nominee.

Although his views may have changed, any hint of Judge Alito's legal philosophy is of keen interest to partisans on both sides of the debate over his nomination because he would succeed Justice Sandra Day O'Connor, the swing vote on abortion rights and other social issues. And his opinions as an appeals court judge often adhere so closely to precedents that they seldom reveal his views of the underlying constitutional issues.

"I am and always have been a conservative," Judge Alito wrote, citing William F. Buckley Jr.'s magazine National Review, Barry Goldwater's 1964 presidential campaign and strong disagreement with the liberal Warren Court as formative influences on his views.

Three Democratic members of the Senate Judiciary Committee, which is scheduled to begin confirmation hearings for Judge Alito on Jan. 9, seized on the application as evidence that he would take an ideological agenda to the bench.

Senator Patrick J. Leahy of Vermont, the ranking Democrat on the committee, said the document showed "an eager and early partisan in the ranks of ideological activists in his party's extreme right wing."

And Mr. Leahy said that some of the statements - including an objection to Warren Court rulings that prohibited states from maintaining election districts that diluted minority representation - raised questions about Judge Alito's commitment to the principle of one person one vote.

Senators Edward M. Kennedy of Massachusetts and Charles E. Schumer of New York, both Democrats, said the strong statements obligated Judge Alito to explain his legal views on abortion rights cases and other controversial issues. Previous nominees have refused to answer such questions to avoid the appearance of prejudgments.

"Here, unfortunately, the memo itself creates the perception of bias," Mr. Schumer said, "and it will be crucial for this nominee to address the issue head on."

Steve Schmidt, a spokesman for the White House, said Judge Alito should be evaluated on the basis of his 15 years of decisions as a federal appeals court judge, "not personal beliefs expressed in a memo before he became a federal judge." His record "shows a clear and consistent pattern of modesty, respect for precedent and judicial restraint," Mr. Schmidt said.

Senator John Cornyn, a Texas Republican on the Judiciary Committee who opposes abortion rights, said, "I'm not sure it is news that Judge Alito is pro-life, nor that Roe v. Wade was poorly reasoned."

Still, Mr. Cornyn said that Judge Alito's track record on the appeals court demonstrated that he could put aside his personal views, including on the question of abortion rights. "I have every confidence he will continue do so if he is confirmed to the United States Supreme Court," he said.

Senator Arlen Specter, the Pennsylvania Republican who is a supporter of abortion rights and the chairman of the Judiciary Committee, said the disclosure was more reason to question Judge Alito closely on how he would value the precedents upholding abortion rights. Mr. Specter said that Judge Alito's views might have changed as the Supreme Court affirmed such rights several times since 1985 and the decisions became "embedded deep in the culture of the country."

Still, he added, "The plot thickens every day."

Two other Republican senators who support abortion rights, Olympia J. Snowe and Susan Collins, both of Maine, expressed sharp concerns about the statement. Ms. Snowe, who is scheduled to meet with Judge Alito on Wednesday, said she planned to question him closely about it.

In his 1985 application - a successful appeal for promotion from assistant to the solicitor general to deputy assistant to Attorney General Edwin Meese III in the Office of Legal Counsel in the Justice Department Judge Alito described a commitment to conservative legal views that he said he arrived at in college a dozen years before. Unlike memorandums from Chief Justice John G. Roberts Jr.'s work for the Reagan administration released during his confirmation, Judge Alito's application describes only his personal views, not those of his employer.

"In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate," he wrote.

"In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with the Warren Court decisions," Judge Alito wrote. He singled out that court's decisions in matters of criminal procedure, the separation of church and state, and the reapportionment of state voting districts to ensure minority groups were equally represented.

"In capsule form," Judge Alito wrote, "I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values."

Judge Alito wrote that he was "a life-long registered Republican" who had contributed to Republican candidates as well as to the National Conservative Political Action Committee, a pillar of the political movement that grew out of the Goldwater campaign.

He wrote that he was also a member of Concerned Alumni of Princeton. Formed in 1972 to oppose the admission of women to the university, the group moved on to criticize the school's minority admissions, permissive social norms, and religious nondenominational while supporting the selective admission's policies of private student clubs affiliated with the school. Judge Alito also said that within the previous year he had submitted articles for publication in the conservative magazines, National Review and the American Spectator. Neither magazine could locate any of his submissions.

    '85 Document Opens Window to Alito Views, NYT, 15.11.2005, http://www.nytimes.com/2005/11/15/politics/politicsspecial1/15confirm.html

Parents Carry Burden of Proof

in School Cases, Court Rules

November 14, 2005
The New York Times
By DAVID STOUT

WASHINGTON, Nov. 14 - The Supreme Court ruled today, in a case of intense interest to educators and millions of parents, that people who demand changes to their children's special-education programs have the burden of proving those programs inadequate.

The court decided, 6 to 2, that the party bringing a challenge to a disabled child's "individualized education program" before an administrative law judge has the responsibility of showing that it is unsatisfactory.

The majority, in an opinion by Justice Sandra Day O'Connor, held that the 1970's Individuals With Disabilities Education Act, sometimes referred to as IDEA, does not necessarily place the onus on the school district. Rather, the majority said, the burden of proof is on whoever brings the challenge - the parents, as in this case, or the school district.

Justice O'Connor rejected the argument that a school district ought to bear the burden of proof more or less automatically because they have more resources than individual parents. The act in question, she said, gives parents plenty of power in disputes over individualized education programs.

"They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition," Justice O'Connor wrote. She was joined by Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Clarence Thomas.

Justices Ruth Bader Ginsburg and Stephen G. Breyer dissented. Justice Ginsburg said, in this case, the school district in Montgomery County, Md., had been slow to meet the needs of Brian Schaffer, a special-ed student, whose parents brought the suit.

"Had the school district, in the first instance, offered Brian a public or private school placement equivalent to the one the district ultimately provided, this entire litigation and its attendant costs could have been avoided," Justice Ginsburg wrote.

Brian Schaffer suffered from learning disabilities and language impairment, according to Justice O'Connor's opinion, and struggled from pre-kindergarten through the seventh grade. In 1997, Brian's parents contacted the Montgomery County school officials seeking a placement for him in the next school year.

His individualized education program called for him to be placed in either of two middle schools. His parents were not happy with that arrangement, contending that he needed smaller classes and more intensive services. They enrolled him in a private school and challenged the Montgomery school district's prior program for him, seeking compensation for the cost of his private education. Eventually, Montgomery officials placed him in a high school with a special learning center, from which he later graduated.

An administrative law judge ruled in favor of the school district and held that the parents bore the burden of proof. A federal district judge later ruled that the burden was on the school district. Still later, the United States Court of Appeals for the Fourth Circuit, in Richmond, said the burden belonged to the parents. Other circuits have differed.

The IDEA legislation did not specify whether the parents or school administrators have the burden of proof in disputes. Several states filed friend-of-the-court briefs maintaining that administrators should have the burden; several other states had maintained that the parents should.

Justice O'Connor said the IDEA legislation covered nearly seven million children across the country, and that it was meant to reverse a sad history. Before its passage, she said, "the majority of disabled children in America were 'either totally excluded from schools or sitting idly in regular classrooms awaiting the time when they were old enough to drop out.' "

Chief Justice John G. Roberts Jr. did not take part in the case because his old law firm represented the Montgomery school district.

    Parents Carry Burden of Proof in School Cases, Court Rules, NYT, 14.11.2005, http://www.nytimes.com/2005/11/14/politics/14cnd-scotus.html

The Supporters

Unwavering Bush Ally Acts Quickly

on Court Choices

November 14, 2005
The New York Times
By GLEN JUSTICE and ARON PILHOFER

WASHINGTON, Nov. 13 - When President Bush named Judge Samuel A. Alito Jr. as his Supreme Court pick, it took Progress for America just 39 minutes to introduce a slick Web site and begin lobbying for his confirmation. And that was slow.

The group had taken 11 minutes to do the same for Harriet E. Miers and only 7 minutes for John G. Roberts Jr. before that. Knowing it would support whomever Mr. Bush chose, Progress for America started working months ago to create more than two dozen Web sites promoting various potential candidates. When the announcements came, it was prepared.

"We get out of the box quickly," Brian McCabe, the group's president, said in an interview.

While many Republican organizations support the White House selectively, Progress for America has shaped an unusual role for itself as an unwavering ally on just about every issue: Supreme Court nominations, tax cuts, terrorism and changes to Social Security.

The group, which is likely to play a leading role in support of Judge Alito, expects to spend at least $2 million on several waves of television advertisements as he heads into Senate confirmation hearings, Mr. McCabe said. And it has also vowed to respond to any attacks by Democratic groups. "P.F.A. stands ready to do what it takes," he said.

Though the group describes itself as an independent grass-roots organization, it receives millions of dollars from the president's largest fund-raisers, is run by former Bush campaign aides and draws heavy support from a Republican lobbying and consulting firm in Washington.

As a result, Progress for America often functions like an unofficial extension of the White House, advancing the president's policies alongside the Republican National Committee.

The group's campaign arm, the Progress for America Voter Fund, is one of the so-called 527 committees, which spent tens of millions of dollars on both sides to influence last year's elections. Though the groups can collect unlimited contributions, they were barred from coordinating with campaigns. But in the postelection season, there is no prohibition against coordinating with the White House and the party, and Progress for America has become one of the strongest players to emerge from 2004.

"It has become a weapon in the arsenal of the Bush administration and the R.N.C.," said David B. Magleby, a professor at Brigham Young University who studies politics. "You can be sure the Democrats are watching and learning, and that this will become the mode of future politics."

The group was formed in 2001 as a nonprofit organization to support Mr. Bush's agenda, but drew widespread attention in last year's presidential race. Its Voter Fund raised roughly $45 million in a few months and financed a barrage of television advertisements focused on terrorism. Now, the group is pushing Mr. Bush's new priorities.

After putting up the Web page supporting Judge Alito, Progress for America created an advertisement within hours and ran $425,000 in television commercials in the first week. It activated consultants in 20 states, who began lobbying for Mr. Alito before editorial boards and on local talk radio programs. And it announced that it would spend $50,000 on Internet advertising and online advocacy.

The group sent about 10 million e-mail messages to supporters, with help from lists supplied by the Republican National Committee and other organizations, and it released "Alito2Go," a video clip of its commercial on the judge that can be viewed with an iPod.

Progress for America has also circulated long lists of Judge Alito's allies to reporters in hopes of generating favorable articles. In addition to law school friends and fellow judges, the group tracked down Judge Alito's former English teacher, his Latin teacher, a fellow youth baseball coach, classmates as far back as middle school and even a neighbor Judge Alito once baby-sat for.

Last week, it helped arrange for 22 of Judge Alito's former law clerks to visit Washington, where they lobbied senators in behalf of their former boss.

"This is an evolution of P.F.A.," Mr. McCabe said. "We have expanded the ways we get our message out. We are using all of the tools in the toolbox."

The campaign to support Judge Alito is similar to those the group waged for Chief Justice Roberts and Ms. Miers. It builds on efforts that started in early summer when the group began a media campaign to pave the way for Mr. Bush's choices and pre-empt Democratic criticism even before any names were announced. So far, it has spent more than $9 million promoting judicial issues, Mr. McCabe said.

The group's continuing efforts contrast sharply with those of Democratic political groups that played a prominent role in the 2004 election.

Two of them, America Coming Together and the Media Fund, raised more than $140 million. Critics called them a "shadow party" exploiting campaign finance laws to augment, or perhaps supplant, the Democratic National Committee. The groups raised most of the money through their 527 committees. Progress for America did the same through its Voter Fund.

While there are plenty of Democratic-leaning organizations focused on Supreme Court issues, America Coming Together and the Media Fund have done little to wade into postelection political fights, and now some say the shadow party title better fits Progress for America.

"There's more energy on their side on a daily basis than there is on our side," said Harold Ickes, who helped lead both Democratic groups. "Democrats are galvanized by a particular candidate and when the election is over, they go about other things. Conservatives have a series of issues that keep them more cohesive and focused."

Officials at Progress for America acknowledge that they work closely with the White House and the Republican Party, but say they have no more access than other organizations. Christian Myers, the group's executive director, described its position as "first among equals," if only because it brings major resources to the table.

"We pride ourselves on blocking and tackling and executing a plan," Mr. Myers said.

During the push to overhaul Social Security, for example, it was well known among the coalition supporting Mr. Bush's plan that Progress for America would be a prime player. The group attended strategy meetings with White House officials, the party, Congressional aides and interest groups, and spent about $7.5 million before turning its attention to judicial nominations.

During the ill-fated effort to have Ms. Miers confirmed, Scott McClellan, the White House spokesman, even referred questions to the group, directing reporters to "check with Progress for America" for details on part of the campaign.

Derrick Max, executive director of a business coalition that supported Mr. Bush's Social Security plan, said the group's ties to the administration and its reputation for effective campaigns had made it a valuable player.

"They always have money," Mr. Max said. "They always have big plans, and they follow through."

Progress for America is run by Mr. McCabe, who commutes to Washington from his home in New Hampshire, and Mr. Myers. The group also relies heavily on the DCI Group, a Republican consulting and lobbying firm in which Mr. McCabe is a partner.

The two organizations share office space, and Progress for America has paid the lobbying firm almost $2 million since last year, according to disclosures. Services have included help with direct mail, buying air time for television commercials and putting consultants in the states to lobby, said Adam Mendelsohn, vice president of the DCI Group.

The ties between the two groups may have paid other dividends for DCI, whose lobbying business increased to nearly $4 million a year from $480,000 from 2001 to 2004, according to lobbying disclosures. However, the firm says there is no link.

"The vast majority of the growth in DCI's lobbying practice occurred through work on Capitol Hill, not with the administration," Mr. Mendelsohn said.

To raise money, Progress for America has turned to many of the president's financial backers. Roughly half of the $45 million its Voter Fund raised last year was contributed by 15 of Mr. Bush's top campaign fund-raisers, records show.

The top givers, who contributed $5 million, included Dawn Arnall, who heads the Ameriquest Capital Corporation; Alex G. Spanos, owner of the San Diego Chargers football team; and A. Jerrold Perenchio, chairman of Univision Communications. T. Boone Pickens, the Texas oilman, contributed $2.5 million. And Richard M. DeVos Sr. and Jay Van Andel of Michigan, co-founders of the Amway Corporation, each gave $2 million.

Unlike many other political advocacy groups, Progress for America uses paid professional fund-raisers. One California fund-raiser, Anne Dunsmore, and her firm, Capital Campaigns, received roughly $1.4 million since last year for soliciting major donors, records show.

Some of the officials who run Progress for America and the DCI Group have worked on Mr. Bush's campaigns. Tony Feather, the Republican lobbyist who founded Progress for America but left before last year's election, worked as a consultant in both Bush presidential campaigns. Thomas J. Synhorst, DCI's chairman, worked as an adviser in 2000. And Mr. Myers was deputy political director in 2004.

"Many of us have swam in the same pond before," Mr. Myers said.

And they have stuck by Mr. Bush. Even when many conservatives turned against Ms. Miers, Progress for America stood firm. On the day she withdrew, the group was planning a nationwide tour promoting her confirmation. Mr. McCabe released a statement defending her decision - and forecasting his group's support for Mr. Bush's next choice.

"P.F.A. is anxious to engage in a debate that will result in the confirmation of a highly qualified, conservative justice," he wrote.

    Unwavering Bush Ally Acts Quickly on Court Choices, NYT, 14.11.2005,
http://www.nytimes.com/2005/11/14/politics/politicsspecial1/14progress.html

The Opposition

Liberal Coalition Is Making Plans

to Take Fight Beyond Abortion

November 14, 2005
By DAVID D. KIRKPATRICK

WASHINGTON, Nov. 13 - A coalition of liberal groups is preparing a national television advertising campaign against the Supreme Court nomination of Judge Samuel A. Alito Jr. that seeks to move the debate over his selection beyond abortion rights and focus instead on subjects like police searches and employment discrimination, several leaders of the coalition said.

The possibility that Judge Alito could vote to narrow abortion rights has dominated discussion among both supporters and opponents of his nomination. But Nan Aron, president of the Alliance for Justice and one of the leaders of the coalition, said a poll commissioned by her organization showed the potential to attack Judge Alito on aspects of his record that had received less attention.

In addition to the alliance, a liberal legal group that focuses on judicial nominations, the coalition includes the abortion rights groups Naral Pro-Choice America and Planned Parenthood, as well as People for the American Way, the A.F.L.-C.I.O., the National Association for the Advancement of Colored People and the Sierra Club.

Last week, the alliance released results of a poll that highlighted elements of the judge's record unrelated to abortion that the liberal groups say could have greater resonance with moderate voters.

Among the issues raised by the poll was Judge Alito's support as a lawyer in the Reagan administration for an employer's right to fire someone who had AIDS. Another issue was a judicial opinion he wrote supporting a police strip-search of a suspected drug dealer's female companion and her 10-year-old daughter. Others included his votes as a judge against employment discrimination suits and an opinion overturning part of the Family and Medical Leave Act.

Judge Alito has explained his reasons for supporting an employer's right to fire someone because that person had AIDS. He told The Washington Post, "We certainly did not want to encourage irrational discrimination, but we had to interpret the law as it stands."

He voted to uphold the strip search of the mother and daughter in Doe v. Groody, arguing in a dissenting opinion that the police were justified in their reading of their warrant because drug dealers often hid narcotics with the help of others in their households.

Besides the potential they see in other subjects, the liberal groups' advertising strategy also reflects the difficulty of pinning down Judge Alito's stand on abortion rights. Last summer, an abortion-rights group withdrew a commercial opposing the nomination of Chief Justice John G. Roberts Jr. amid criticism that it misconstrued his defense of clinic protestors as support for a bomber.

The Alliance for Justice poll showed that a majority of Americans would oppose Judge Alito if they thought he would vote to overturn the landmark abortion rights case Roe v. Wade. But although groups on both sides of the issue expect Jude Alito to narrow abortion rights, his judicial record is hardly definitive.

His most controversial opinion on the subject was a dissent supporting provisions of a Pennsylvania law that with some exceptions required married women to notify their husbands before obtaining abortions. Many polls have shown that a majority of voters favor such restrictions.

People involved in the advertising effort said the coalition was planning to spend several million dollars to broadcast commercials, perhaps beginning late this week, on national cable networks and in the home states of potentially pivotal senators.

The groups are starting their campaign much earlier in the process than they have for past nominees; liberal groups did not begin advertising against Judge Robert H. Bork until around the start of his confirmation hearings. Judge Alito's hearings are two months away.

Even before seeing the commercials, Steve Schmidt, a spokesman for the White House, accused the groups of planning "millions of dollars worth of wildly inaccurate advertisements that border on character assassination."

Sean Rushton, executive director of the Committee for Justice, an organization that supports President Bush's nominees, said the liberal groups were recognizing that their opposition to abortion restrictions would alienate mainstream voters.

Mr. Rushton said the advertising campaign would end up helping Judge Alito by enabling conservatives to mount their own campaign in his defense, attacking the liberal groups for their stands on gay rights and other social issues. When Judge Alito testifies, the conservative groups' commercials "will just paint the accusers as the shrill and extreme ones," Mr. Rushton said.

Ms. Aron and Ralph G. Neas, president of People for the American Way and another leader of the coalition, emphasized that the liberal groups were not backing away from the abortion rights issue.

"To put together the broadest possible coalition and to appeal to as many voters as we can," Ms. Aron said, "raising all aspects of his record are important, including the abortion issues."

The goal, Mr. Neas said, is "to make clear that that is one of many issues" in "an epic struggle between two competing and radically different judicial philosophies."

Nancy Keenan, president of Naral Pro-Choice America, said her organization was "lock step" with the rest of the coalition and understood the need to emphasize issues in addition to abortion, "to look at the whole man, so to speak."

    Liberal Coalition Is Making Plans to Take Fight Beyond Abortion, NYT, 14.11.2005, http://www.nytimes.com/2005/11/14/politics/politicsspecial1/14alito.html

Yale Law Frets

Over Court Choices It Knows Best

November 13, 2005
The New York Times
By ADAM LIPTAK

NEW HAVEN, Nov. 8 - The morning after Judge Samuel A. Alito Jr. was announced as the president's choice for the Supreme Court, some students and professors at his alma mater, the Yale Law School, were already hard at work - to defeat him.

Professor Bruce Ackerman, who teaches constitutional law here, appeared on CNN with this instant assessment: "I don't think conservative is the word. This person is a judicial radical."

A group called Law Students Against Alito was formed the same day. "There is a chunk of the population, probably a majority," said Ian Bassin, a founder of the group, "who does not want this guy on the Supreme Court."

If the past is any guide, the bond between this conservative judge and this law school, which has traditionally attracted liberal students and faculty members, is about to be tested. And the early indications here are that Judge Alito will face some of the hostility that met the last two Supreme Court nominees with connections to the school, Judge Robert H. Bork and Justice Clarence Thomas.

Conservative students here said they were concerned that the Alito nomination would be a replay of what they called the savage treatment meted out to Judge Bork and Justice Thomas, who endured bruising confirmation battles.

Judge Bork's nomination was rejected in 1987, and Justice Thomas was confirmed by a vote of 52 to 48 after his hearings in 1991.

Faculty members testified on both sides both times. But the school was generally opposed to their nominations, said professors, students and alumni. Justice Thomas was thought to be unqualified, and Judge Bork's views were considered too extreme.

In his 14 years on the Supreme Court, Justice Thomas, of the Yale class of 1974, has refused to return here, and Judge Bork, who was on the faculty for 15 years, chortles during speeches when he cites "a bit of populist wisdom" he once saw on a bumper sticker: "Save America. Close Yale Law School."

For now at least, Judge Alito, of the class of 1975, retains strong ties to the law school. In a recent note to its dean, he apologized for missing his 30th reunion last weekend, presumably because he was busy courting senators and preparing for his confirmation hearings.

"I believe," he wrote, "that this is the first five-year reunion I have not attended."

Judge Alito may yet attract substantial support here, students and professors said, because he is popular on a personal level, qualified as a formal matter and technical rather than overtly ideological in his approach to the law.

He was also better known as a student than Justice Thomas, and he has not espoused sweeping theories, as Judge Bork did in his academic writings.

The mood here appeared to be cautiously hostile. A few students who supported Judge Alito tended to make strategic or structural arguments. Some said, for example, that ideology alone should not derail a candidate who was otherwise qualified.

"He is a remarkably careful, conscientious, craftsmanlike, modest, even humble judge," said Peter H. Schuck, a law professor who described himself as a political moderate. "It's true that he generally comes out on the side of those who call themselves conservative. If I were in the Senate, I would like to think I would not vote against him on that ground."

But the dominant view, based on a day of interviews at the law school, appeared to be that Judge Alito's jurisprudence represented a betrayal of the law school's liberal values.

Prof. Robert W. Gordon, who teaches legal history, said he had read all of Judge Alito's 15 years of opinions. "Alito is a careful carpenter," Professor Gordon said. "The things are well built, but they are not beautiful. Alito in my judgment is just too steadfastly conservative."

Still, the memories of the Bork and Thomas hearings linger, and many of those interviewed said that they hoped the discussion of Judge Alito's views would be robust but civil.

"We've got to find some way to climb up from the hole we have dug for ourselves," said Anthony T. Kronman, who was dean from 1994 to 2004, referring to the tone of the earlier confirmation hearings.

Joshua Hawley, a third-year student and the president of the law school's chapter of the Federalist Society, a conservative group, said he hoped the school had learned a lesson from the earlier experiences.

"The faculty was perhaps somewhat chastened," Mr. Hawley said, "by the charge that they had stabbed a colleague in the back and then had stabbed a former student in the back."

The two earlier conservative nominees may never overcome their anger at what they considered the school's disloyalty, said Steven Brill, a legal journalist, entrepreneur and law school classmate of Judge Alito's.

"They both think," Mr. Brill said, "that the law school betrayed them."

The earlier nominations were a turning point for the law school, said Harold Hongju Koh, the current dean.

"This kind of self-awareness of Yale's prominence really emerged for the first time with the Bork and Thomas hearings," Dean Koh said. "The U.S. News rankings started in 1987, too, and we've been at the top of those rankings ever since."

A spokesman for U.S. News & World Report said the law schools at Yale and Harvard were tied in the 1987 rankings. There were no rankings the next two years. In every year since, Yale has claimed the top spot.

The law school at Yale accepts about 6 percent of those who apply, and 87 percent of those who are accepted attend, Dean Koh said. It has about 195 students a year, about a third as many as Harvard.

Justice Thomas, who has refused to have his portrait hung alongside the four other graduates who served on the Supreme Court, did not respond to a request for an interview.

In remarks to students at Ashland University in 1999, Justice Thomas said his grudge against Yale was not based on his experiences as a student. "Yale was fine," he said. "I have some fundamental disagreements with Yale Law School subsequent to that. I don't consider myself particularly close to Yale Law School, but that is not because of the way I was treated when I attended Yale Law School."

Yale officials said Justice Thomas had rebuffed their invitations.

"Sadly," said Professor Kronman, the former dean, "relations between Justice Thomas and the law school have not been as warm and cordial as I would wish them to be."

He added: "The confirmation process left a residue of discomfort that has never completely drained, though I think it is dissipating. I believe that he felt, with whatever justification, that the school did not come out as strongly and consistently and institutionally in support of his nomination as he would have wished."

Justice Thomas's confirmation hearings initially focused on his qualifications and then were rocked by accusations of sexual harassment by a former colleague in the Reagan administration, Anita Hill, of the Yale Law class of 1980. Students these days make jokes at Justice Thomas's expense, said Stephen Townley, a third-year student. "It's a question about intellectual rigor."

Prof. Owen M. Fiss, who teaches procedure and constitutional law, said the opposition to Justice Thomas was not as intense as it might have been, attributing that to Justice Thomas's being black and not well known as a student. "The one lesson for the law school," Professor Fiss said, "was that we didn't work hard enough to oppose him."

Professor Fiss testified against Judge Bork, and he said he had no regrets. He said he had not formed a view of the Alito nomination.

In a telephone interview, Judge Bork said that the law school had changed. "When I went to Yale Law School to teach in 1962," he said, "it was an overwhelmingly liberal institution, but liberals back then were quite reasonable."

He said it was "only later, after the student troubles" of the Vietnam War era, "that a hard attitude set in."

He added that he did not fault "the law school as such" for his treatment during his confirmation hearings.

"There are some people whose role I didn't admire," Judge Bork said. "There were some people who can only be described as on the left who were quite vicious."

A recent study in The Georgetown Law Journal suggested that Judge Bork's assessment of the law school's political leanings was true. The study analyzed 11 years of records reflecting federal campaign contributions by professors at the top law schools. Forty-three percent of law professors at Yale made contributions of more than $200, and 92 percent of those gave mostly or wholly to Democrats.

Professor Shuck said, "The politics of Yale Law School and the other elite law schools is 95 percent left and 5 percent other." He said he counted perhaps four conservative professors on a faculty of about 70.

Four students recently chewed over the Alito nomination in the offices of The Yale Law Journal. Justin Florence, another founder of the group opposing Judge Alito, said the students had an important role.

"This really matters to our generation," Mr. Florence said. "If these hearings are going to become a national conversation about how the Constitution should be interpreted, that can't be a one-sided conversation. The Bork hearings - they were a substantive conversation. The Thomas hearings were an embarrassment filled with character attacks. It would be great if we had another Bork hearing."

C. J. Mahoney, the one conservative student in the room, said, "It's interesting that you formed a stop-Alito group but not a stop-Miers group," referring to Harriet Miers, who withdrew her nomination last month. "In a perverse way, you have the inclination to stop someone who is qualified."

Mr. Bassin said that two of Judge Alito's opinions - one limiting the right to sue states under the Family Medical and Leave Act, the other dissenting from a decision upholding a federal law regulating machine guns - troubled him. Mr. Mahoney responded to each criticism patiently and cheerfully.

"Do we really think the streets are less safe because we rely on local laws to enforce gun laws?" he asked. Other cases, he said, turned on "particular methods of statutory interpretation" rather than predetermined outcomes.

"That's the difference between how conservatives and liberals look at things," he said.

    Yale Law Frets Over Court Choices It Knows Best, NYT, 13.11.2005, http://www.nytimes.com/2005/11/13/politics/politicsspecial1/13yale.html

Bush's Conservative Judge

Harbors Libertarian Streak

November 12, 2005
The New York Times
By JONATHAN D. GLATER and ADAM LIPTAK

Judge Samuel A. Alito Jr. has vigorously defended freedom of expression, adopting a stance that places him among a group of conservative judges with a libertarian streak.

Judge Alito's broad reading of the freedom of speech and press clauses of the First Amendment stands in contrast with his narrower interpretation of other constitutional rights, including the Fourth Amendment's prohibition of unreasonable searches and the Sixth Amendment's guarantees of fair trial rights for criminal defendants.

Judge Alito, President Bush's choice for the Supreme Court, has found First Amendment violations in a school board's antiharassment policy, in a ban on liquor advertisements in a college newspaper and in the removal of a boy's drawing of Jesus from a schoolhouse wall.

But this willingness to protect expression has not extended to cases involving prisoners and government employees. In a dissent this year, for instance, he argued that officials in a maximum security prison were free to punish inmates by barring their access to newspapers and magazines.

"Judge Alito is part of the new breed of conservative libertarian jurists who are sensitive to safeguarding our free-speech freedoms," said Ronald K. L. Collins, a scholar at the First Amendment Center, a research and advocacy group in Virginia. "They're particularly sensitive when it comes to issues involving speech and commerce and political orthodoxy."

These judges tend to be very protective of speech rights when they involve the marketplace of ideas, or the core of the First Amendment, said Jesse H. Choper, a constitutional law professor at the University of California, Berkeley.

Among the generally conservative judges who share Judge Alito's approach to free expression are Justice Anthony M. Kennedy and Judge Alex Kozinski on the United States Court of Appeals for the Ninth Circuit, in San Francisco. Justice Antonin Scalia may also be considered in this group; his vote was critical in a 1989 case holding that burning the American flag was a form of protected political speech.

In Judge Alito's 15 years on the United States Court of Appeals for the Third Circuit, his most expansive meditation on the contours of the First Amendment's speech protections came in a 2001 case challenging a code of conduct.

David Saxe, a member of the Pennsylvania State Board of Education and the legal guardian of two students in the State College school district, challenged the district's antiharassment policy, which forbade jokes and demeaning comments about various personal characteristics, including race, sexual orientation, clothing, social skills and values.

Mr. Saxe said the code interfered with his family's right to speak out in opposition to homosexuality. Judge Alito, writing for a unanimous three-judge panel, ruled in his favor.

There is, Judge Alito wrote, "no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs."

Telling students not to be catty about clothes and social skills, he went on, "may be brave, futile or merely silly." But banning speech about values, he said, "strikes at the heart of moral and political discourse - the lifeblood of constitutional self-government (and democratic education) and the core concern of the First Amendment."

The judge's views in this case contrast with his position in a lawsuit filed by Phyllis J. Sanguigni, a teacher at the Taylor Allderdice School in Pittsburgh, who argued that the school retaliated against her after she wrote in a newsletter about poor morale and stress among teachers. She was removed from a coaching position.

Writing for a unanimous three-judge panel, Judge Alito decided that the teacher had no free speech claim. "Sanguigni did not comment on any broad social or policy issue," he wrote, and her statements conveyed little useful information to the public. "Nor did she comment on how the Taylor Allderdice School was discharging its educational responsibilities or how the school authorities were spending the taxpayers' money."

In another case involving students, Judge Alito, again writing for a unanimous panel, struck down a Pennsylvania law that banned alcohol advertisements in college newspapers. The law was intended to combat under-age drinking.

Judge Alito said it violated the First Amendment in two ways. First, he ruled that the commercial speech rights of advertisers were curtailed for no good reason. Even if students do not see advertisements for alcohol in their college newspapers, he wrote, "they will still be exposed to a torrent of beer ads on television and radio, and they will still see alcoholic beverage ads in other publications." The law did such a poor job of achieving its goal, he said, that it violated the First Amendment.

The law also violated the newspapers' rights, Judge Alito ruled, by singling them out for a financial penalty. "If government were free to suppress disfavored speech by preventing potential speakers from being paid," he wrote, "there would not be much left of the First Amendment."

Judge Alito sided with the mother of a kindergarten pupil whose son's depiction of Jesus was removed from a schoolhouse wall after all students were asked to draw what they were thankful for. The appellate panel of 14 judges did not decide the case on First Amendment grounds, a move strongly criticized by the judge, and sent it back to a lower court.

"Instead of confronting the First Amendment issue that is squarely presented by that incident," Judge Alito wrote, "the court ducks the issue and bases its decision on a spurious procedural ground."

He added: "I would hold that public school students have the right to express religious views in class discussion or in assigned work, provided that their expression falls within the scope of the discussion or the assignment and provided that the school's restriction on expression does not satisfy strict scrutiny."

Judge Alito's most significant libel decision involved a quirky claim against Time and Newsweek magazines by C. Delores Tucker, who had campaigned against vulgarity in rap music. In an earlier libel suit by Ms. Tucker against the rapper Tupac Shakur, Ms. Tucker's husband had filed a common claim, for "loss of consortium," a legal term meaning that the injury she had suffered had also caused him to lose her marital companionship.

A lawyer for Mr. Shakur's estate pointed out that loss of consortium commonly includes damage to the couple's sexual relationship, and Time and Newsweek had some fun at the Tuckers' expense. "A lyrical attack by Tupac iced their sex life," Newsweek said of the Tuckers. They sued, saying the mockery was libel.

Judge Alito dismissed the claims. The Tuckers, he ruled, were public figures and had to prove that the magazines had acted with actual malice, that is, knowing their statements were false or entertaining doubts about their truth when they published them. The Tuckers had, he said, failed to do that.

Judge Alito seemed comfortable with the meaning of "loss of consortium" but turned to the Encyclopedia Britannica for a definition of "gangsta rap," which he reproduced in a footnote ("a marriage of languid beats and murderous gang mentality").

Judge Alito has exhibited little patience for the First Amendment claims of prisoners. In addition to his dissent in favor of barring access to publications for prisoners, he wrote for a unanimous three-judge panel in 1999 to reverse a lower court's ruling that the rights of incarcerated pedophiles were violated when their access to pornography was restricted.

"It is beyond dispute," he wrote, "that New Jersey has a legitimate penological interest in rehabilitating its most dangerous and compulsive sex offenders."

But his past First Amendment opinions may offer little insight into Judge Alito's views on looming controversies, notably how far the government can go in controlling information as it battles terrorism.

"There are some areas where he is untested, like free speech in wartime," Mr. Collins said. "Will the vibrant free speech spirit in his commercial speech and speech code cases translate into free speech in wartime, where the First Amendment butts up against executive power?"

    Bush's Conservative Judge Harbors Libertarian Streak, NYT, 12.11.2005, http://www.nytimes.com/2005/11/12/national/12first.html

Despite Recent Gains,

Conservative Group Is Wary

on Direction of Court

November 11, 2005
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Nov. 10 - These might seem the best of times for the Federalist Society, the conservative lawyers' group established two decades ago to counter what its founders considered the liberal bent of law schools, bar associations and the federal courts.

A Federalist Society favorite, John G. Roberts Jr., was recently installed as chief justice of the United States. Judge Samuel A. Alito Jr., a longtime member, is in line to join him on the Supreme Court.

The debates over their nominations turned the spotlight of public attention on the society, and on the morning of the organization's annual convention on Thursday, President Bush met with Federalist Society leaders at the White House to commend them for their good work.

But at the convention, among the 1,500 scholars, advocates and judges, a number of whom had been on the shortlist for the Supreme Court, the mood was anything but jubilant.

"What is there to be jubilant about?" asked Edward Whelan, the president of the Ethics and Public Policy Center and a former clerk for Justice Antonin Scalia. "We have a Supreme Court that has been essentially lawless in so many respects for decades now, and a lot of work has to be done to restore it to its proper role."

Liberal groups argue that the retirement of Justice Sandra Day O'Connor, the swing vote in many abortion rights cases, throws open the direction of the court. But most of the Federalist Society speakers contend that for decades the court has been veering much too far from the founders' original intentions to be corrected by the replacement of just one justice.

They cited decades of decisions on abortion, public expression of religion, gay rights, property rights, the death penalty and the scope of federal power extending through the court's last term. And many of the cases, including the landmark abortion rights precedents, were decided by majorities of six or more.

"We can all count to nine, and at best we may be at four in two months," Mr. Whelan said, counting the conservatives: Justice Scalia, Justice Clarence Thomas, Chief Justice Roberts and potentially Judge Alito.

Professor Lino A. Graglia of the University of Texas School of Law compared the modern Supreme Court to Iran's "grand council of ayatollahs," which has the power to veto legislation at will. The court had become like Plato's "philosopher kings," Professor Graglia said, but worse: "Philosopher lawyers."

Judge Michael W. McConnell of the United States Court of Appeals for the 10th Circuit, who has been one of those often mentioned as a potential Supreme Court nominee by a Republican president, accused the court of inventing a host of rights not specified in the Constitution, including the right to an abortion.

But Judge McConnell predicted that despite the recent changes to the court, "the issue of 'unenumerated' rights and especially the right to abortion will continue to divide the nation for some time to come as it continues to divide the Supreme Court itself."

Many Federalist Society members said they were delighted with the choice of Judge Alito and relieved at the withdrawal of the previous nominee, Harriet E. Miers, the White House counsel.

Ms. Miers, who was not a member of the Federalist Society, had sat out the group's decades-long push for a more conservative approach to the law. Many in the group questioned both her qualifications and her ideological commitment.

"I think the nomination of Judge Alito has really sort of galvanized the right that was so disappointed with the nomination of Harriet Miers," said Judd A. Serotta, a lawyer at the firm of Blank Rome who is president of the Philadelphia chapter of the Federalist Society.

"Part of the griping you will hear around here is that there is this pressure once you are on the court to sort of seek more power for yourself as a judge, and that tends to mean sort of moving to the left," Judge Serotta said. The prime example, he said, is Justice Anthony Kennedy, a Reagan appointee who has voted with the court's liberal justices on abortion and other issues, and who could become the new "swing vote" in the middle of the court.

Adam G. Ciongoli, general counsel of the European division of Time Warner and a former clerk for Judge Alito, called Judge Alito an ideal choice for the court because he is a "restrained judge" who would keep his personal opinions out of his decisions.

But he said that might also "disappoint" some in the Federalist Society who believed that "restraint" would mean ruling for the conservative side in disputes about abortion and other social issues. Among his fellow clerks, Mr. Ciongoli noted, were others who had gone on to work for Democratic politicians, an abortion rights group and the gay rights group Lambda Legal.

David J. Stoll, the former Alito clerk who now works with Lambda Legal, said that like Justice O'Connor, Judge Alito would not bring any ideological agenda to cases. "I think he is fantastic," Mr. Stoll said.

    Despite Recent Gains, Conservative Group Is Wary on Direction of Court, NYT, 11.11.2005, http://www.nytimes.com/2005/11/11/politics/politicsspecial1/11confirm.html

Justices Back Paying Workers

as They Suit Up

November 8, 2005
By THE ASSOCIATED PRESS
Filed at 12:14 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court ruled unanimously Tuesday that companies must pay plant workers for the time it takes to change into protective clothing and safety gear and walk to their work stations.

The issue was one of two that justices settled in a pair of unanimous decisions, the first rulings under the leadership of Chief Justice John Roberts in the new fall term. Roberts did not write either one.

In a defeat for business, the court said that employers must pay wages for the donning of ''integral'' gear and the time it takes workers to then walk to the production area.

The court, in a ruling by Justice John Paul Stevens, upheld a decision of the 9th U.S. Circuit Court of Appeals in favor of workers at a meat processing plant in Pasco, Wash. Those workers typically put on sanitary outer garments, boots, hardhats, goggles and gloves.

In a second ruling, the justices said the 9th U.S. Circuit Court of Appeals should reconsider whether federal officials can be sued for negligence over an accident in an Arizona copper mine.

Justice Stephen Breyer, writing that opinion, said the appeals court ruled too broadly in allowing the lawsuit by two men who were seriously injured in 2000 when a nine-ton rock slab fell from the ceiling of the Mission Underground Mine.

The worker pay case was the first appeal argued this term, on Oct. 3, and the first in which Roberts was presiding on the court.

The time spent putting on protective gear was not the focus of the ruling, because the Supreme Court said in a ruling nearly 50 years ago that plant workers must be compensated for time spent putting on special clothes.

Instead, the dispute focused on the time employees spend walking from place to place. Justices had been told that workers sometimes have long waits after putting on their gear.

The decision involves a Washington state plant owned by IBP Inc. and a separate Barber Foods plant in Portland, Maine.

It was not a total defeat for business. Stevens wrote that workers could not demand payment for time spent waiting in line for equipment and safety gear, when they first arrive for work.

The cases are IBP Inc. v. Alvarez, 03-1238; Tum v. Barber Foods Inc., 04-66; and U.S. v. Olson, 04-759.

------

On the Net:

Supreme Court: http://www.supremecourtus.gov/

    Justices Back Paying Workers as They Suit Up, NYT, 8.11.2005, http://www.nytimes.com/aponline/national/AP-Scotus-Protective-Gear.html

 Justices to Rule on a Challenge to U.S. Tribunals        NYT        8.11.2005
http://www.nytimes.com/2005/11/08/politics/08detain.html 

Justices to Rule

on a Challenge to U.S. Tribunals

November 8, 2005
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Nov. 7 - The Supreme Court announced on Monday that it would decide the validity of the military commissions that President Bush wants to use to bring detainees charged with terrorist offenses to trial.

The case, to be argued in March without the participation of Chief Justice John G. Roberts Jr., places the court back at the center of the national debate over the limits of presidential authority in conducting the war on terror. Last year, the Supreme Court rejected the administration's position that the federal courts had no jurisdiction over those held as enemy combatants at the United States naval base at Guantánamo Bay, Cuba.

This time, once again, the justices acted over the vigorous opposition of the administration, which urged the court to stay its hand and defer any review until after a detainee had been tried by a military commission and convicted.

Lawyers representing Salim Ahmed Hamdan, the Yemeni who brought the challenge to the commissions, argued however that the issues of domestic and international law raised by the case were sufficiently important to be heard and resolved without further delay.

The military and civilian lawyers representing him are arguing that President Bush had neither statutory authorization nor inherent authority to establish military commissions. Further, they argue that the commissions, as defined by the military order the president issued on Nov. 13, 2001, violate the Third Geneva Convention by withholding protections that defendants are guaranteed in courts-martial.

Mr. Hamdan, described by the government as Osama bin Laden's former bodyguard and driver, is charged with conspiracy, murder and terrorism. He was captured in Afghanistan in 2001 and since 2002 had been held at Guantánamo. He is now one of a dozen detainees, out of the more than 500 still held there, who have been designated by President Bush as eligible for trial before military commissions.

These would be the first trials by military commissions since the World War II era. Preliminary motions for the first trial, for an Australian detainee, David Hicks, are due to be heard at Guantánamo Bay next week. The Pentagon said on Monday afternoon that it would proceed as planned, but Judge Colleen Kollar-Kotelly, a federal district judge here with jurisdiction over another aspect of the Australian's case, ordered the parties to file briefs addressing whether the hearing should now be postponed.

Although the Hamdan case, Hamdan v. Rumsfeld, No. 05-184, is likely to be the marquee case of the Supreme Court's term, it will be decided without Chief Justice Roberts.

That is because he was a member of the three-judge panel of the federal appeals court here that rejected Mr. Hamdan's challenge to the commissions, overturning a ruling issued by Judge James Robertson of Federal District Court last November.

The appeals court issued its decision on July 15, four days before President Bush nominated Judge Roberts to the Supreme Court. When Mr. Hamdan's lawyers filed their Supreme Court appeal three weeks later, it was obvious that Judge Roberts, if confirmed to the Supreme Court, would be ineligible to participate.

The potential for a 4-to-4 tie may have been a reason for the apparent difficulty the other eight justices had in deciding whether to hear the case, an action that requires four votes. The case was listed for consideration at the justices' first closed-door conference of the new term, on Sept. 26, and at every one of their subsequent weekly conferences, with no indication of the fate of the appeal until the court issued an order Monday morning, granting the case and noting that "the chief justice took no part in the consideration or decision of this petition."

A tie vote affirms the lower court's decision without setting a Supreme Court precedent. There are a number of interrelated issues in the case, and the court's roadmap through them is not necessarily clear. At the threshold, Mr. Hamdan's lawyers, Professor Neal K. Katyal of Georgetown University Law Center and Lt. Cmdr. Charles Swift, argue that the president's executive action establishing the military commissions was simply without authorization.

"The president's unilateral creation of commissions," they argue, "his single-handed definition of the offenses and persons subject to their jurisdiction, and his promulgation of the rules of procedure combine to violate separation of powers." They add: "The Revolution was fought to ensure that no man, or branch of government, could be so powerful."

The Authorization for the Use of Military Force, which Congress passed in the immediate aftermath of the Sept. 11 attacks, cannot plausibly be interpreted as the Court of Appeals did, to authorize military commissions, Mr. Hamdan's brief asserts. "While 'force' implies the power to detain those captured in battle, it does not imply a power to set up judicial tribunals far removed from zones of combat or military occupation," the brief says.

As to the actual operation of the commissions, Mr. Hamdan's lawyers describe the rules of procedure as "starkly different than the fundamental protections mandated by Congress in the Uniform Code of Military Justice," which governs courts-martial. Their principal objection is to the rules' failure to give the defendant an absolute right to attend the trial, a right they describe as "universal" under civilian, military and international law. "Saddam Hussein and his henchmen" will be able to attend their trials under rules written by the Pentagon, they note.

Finally, Mr. Hamdan's lawyers argue that he is protected under the Geneva Conventions despite the administration's view that the convention that deals with prisoners of war does not apply to the military conflict with Al Qaeda. This argument is supported by a brief filed by a group of retired generals and admirals.

Under Article 102 of that convention, a sentence imposed by a "detaining power," in this case the United States, can be valid only if it "has been pronounced by the same courts according to the same procedure" as members of the country's armed forces would enjoy. Under Article 5, any doubt about an individual's eligibility for prisoner-of-war status must be resolved by a hearing before a "competent tribunal;" Mr. Hamdan, who denies being a member of Al Qaeda, has not received such a hearing.

The administration argued successfully in the appeals court that individuals cannot assert rights in court under the Geneva Conventions. Mr. Hamdan's lawyers dispute this but argue that, even if it is correct, it is beside the point because he is entitled to pursue his case through the mechanism of a habeas corpus petition.

    Justices to Rule on a Challenge to U.S. Tribunals, NYT, 8.11.2005, http://www.nytimes.com/2005/11/08/politics/08detain.html

Court Choice Is Conservative by Nature,

Not Ideology

November 7, 2005
The New York Times
By JANNY SCOTT

In an office two doors away from Attorney General Edwin Meese III, Samuel A. Alito Jr. found himself at the heart of the Reagan revolution. He was a 35-year-old deputy assistant attorney general and it was 1985. He was working 12- to 14-hour days in the Office of Legal Counsel in a period of what colleagues describe as extraordinary intellectual ferment that marked them for life.

It was a time of re-examination of basic principles. Mr. Meese was focused on reorienting the law toward a more conservative interpretation of the Constitution. The office, which advises the attorney general, was fired with zeal. But Mr. Alito, after eight years as a civil servant, brought something else, friends say: a respect for stability and continuity in the law, as well as deep admiration for President Ronald Reagan's emphasis on family, neighborhood and work.

Mr. Alito, the analytical, circumspect son of an analytical, circumspect father, who rose to become a federal appeals court judge and is now President Bush's nominee to become the next justice of the Supreme Court, is remembered from those days in the Office of Legal Counsel for his superior research powers, his probing brain, his wrestling with the questions and his disinclination to see any issue as a slam dunk.

It remains to be seen what kind of justice Judge Alito might turn out to be, if he gets the chance: whether, for instance, he is the upper-case conservative that the right may hope for and many on the left fear. An examination of several chapters in his life suggests he is conservative by temperament, upbringing and experience - conditions that appear to have shaped his approach to life and his work more than any narrow ideological niche.

"There are people in Washington who become a kind of tight political circle, in the sense of almost the secret handshake," said Douglas W. Kmiec, a professor of constitutional law at Pepperdine University who worked with Judge Alito in the office in the mid-1980's and became a close friend.

"I would put Sam and myself outside of that circle - not in the sense that we disagreed with anything in particular but that we were less willing to sign on for the fraternity," he said. "The one thing about fraternities is that they take on missions or causes that may be all right in themselves but you have to sign onto them in advance. Neither of us, by personality, would want that."

Throughout his life - at Yale Law School, as a government lawyer, as a judge on the United States Court of Appeals - Judge Alito has earned respect, even friendship, across the political spectrum. Some who describe themselves as liberals say they admire what they call Judge Alito's meticulousness and fair-mindedness - traits he appears to have come by early in life.

In high school, classmates called the studious youth Mr. President - and not simply because he was student council president. In the Reserve Officers Training Corps, he smudged his Princeton University affiliation off his helmet to avoid standing out. At Yale, his powers of artful argument were such that he won a moot court contest taking one side of a case that was before the Supreme Court. A few weeks later, the Supreme Court ruled 9-0 for the other side.

Friends describe Judge Alito as disinclined toward small talk but brilliant in debate. He lives in suburban West Caldwell, N.J. - a quiet homebody with simple tastes married to a live wire and occasional practical joker.

When his neighbors Alex Panzano and his wife, Susan, invited Sam and Martha Alito over for dinner recently, Judge Alito complimented Mr. Panzano on the wine; it turned out to be a $7 bottle from Chile.

J. L. Pottenger Jr., a friend of Judge Alito's at Princeton and Yale who is now a professor at Yale, said: "The reason I'm hoping he gets confirmed, even though I am a liberal, maybe an ultraliberal, is because I think he's an honest, well-intentioned guy who believes in judicial restraint in the model of Supreme Court Justice John Harlan and I can't really argue with that as a judicial philosophy. I don't think he's an ideologue. I don't think he's going to be out there trying to roll back the clock."

Amid Change, a Voice for Stability

In the early 1980's, conservative lawyers who had been languishing in the political wildnerness gravitated toward the Department of Justice under President Reagan to focus on reversing course on issues like affirmative action and abortion. The Office of Legal Counsel, where Judge Alito went to work in 1985, is sometimes known as "the conscience of the Justice Department."

The office advises the attorney general, who in turn advises the President and the executive branch. It fashions executive orders, considers the constitutional implications of proposed legislation and renders opinions in disputes. Government officials turn to the office for an honest answer as to what the law requires, which may or may not mean that they can do what they want to do.

"As a lawyer in that office, your responsibility is to keep the government from making mistakes," said John. F. Manning, a Harvard law professor who worked there with Judge Alito. "It really puts the question of 'Is there legitimate authority for government to do what it wants to do?' right in the forefront of your mind. I think any time you're spending a couple of years doing nothing but thinking about the separation of powers and the structure of government, it's bound to change the way you think about the world."

Mr. Meese, now a conservative icon, whom President Reagan appointed as attorney general in 1985, served as "instructor at large getting us all to re-examine every basic proposition to see what was and was not true," Professor Kmiec said. John O. McGinnis, a law professor at Northwestern who worked in the office too, shared that memory.

"Meese had just moved over to the Justice Department and he of course was one of the thoughtful proponents of originalism and federalism," Professor McGinnis said, referring to the conservative ideals of deciding cases based on the framers' understanding of the meaning of the Constitution and on deference to the role of the states in the federal system.

(From 1981 to 1986, another young lawyer, John G. Roberts Jr., now the chief justice, worked in the Reagan administration, first as a special assistant to Mr. Meese's predecessor, William French Smith, and then as a junior lawyer in the White House counsel's office.)

Judge Alito had been recruited by Charles J. Cooper, the assistant attorney general in charge of the Justice Department's Office of Legal Counsel and a dynamic proponent of those goals. "Our views were simpatico," Mr. Cooper said on Friday. "His philosophy of the law was a philosophy about the proper, limited, restrained role of the courts."

But colleagues remember Judge Alito bringing other strengths to the job, including what Professor McGinnis calls "some of the virtues of the Civil Service." He had worked as an assistant United States attorney and then as an assistant to the solicitor general. Those virtues, Professor McGinnis said, included a focus on continuity of the law and an appreciation of the importance of stability.

Professor Manning said: "In the Justice Department, there was definitely a sense of a real kind of enthusiasm or headiness, however you want to characterize it. He was a very dispassionate lawyer. He struggled over issues. He didn't think of things as slam dunks or easy. He wrestled with things."

Judge Alito was something of a stickler about how opinions and other documents were researched and prepared. And colleagues in Washington remember him as a person with impressive powers of concentration who would head off to the law library and not return for hours.

"Somewhere in his past, this guy learned to do research like nobody I know," said Carter G. Phillips, a Washington lawyer who first met Judge Alito in 1981. "Obviously, if you're a lawyer and you have real powers of concentration and an ability to do research, then those are enormous gifts to have for the practice of law."

Son of a Rigorous Father

One place where Judge Alito learned that skill was as a child at home in Hamilton Township, N.J. His father, Samuel A. Alito, was the soft-spoken and rigorously nonpartisan director of the Office of Legislative Services, an agency that advises the New Jersey Legislature. He was widely respected for his judiciousness and analytical habits of mind.

Judge Alito's father was an expert in drafting legislation; he seemed to know everything there was to know about every statute. In the partisan culture of Trenton, he is said to have remained unfailingly impartial. Arthur S. Applebaum, a former colleague, said Mr. Alito received delicate assignments, including work on a commission that looked into whether legislators were too close to figures in organized crime.

One legislator took to calling him "the professor." Mr. Applebaum said of Mr. Alito, who had emigrated from Italy as a child: "He would never hesitate to correct anyone's English. He'd come right out and say, 'Don't use the word 'presently.' Use the word 'currently.' "

Years later, lawyers working in Washington would get documents kicked back to them by Mr. Alito's son with what Professor Kmiec describes as "arrows and cross-outs and rewritings that reflect this senior Alito's instruction on how to write a good, clear sentence, an organized, structured paragraph, not to bury the lead, as it were, so as not to keep your client guessing as to what he can or cannot do."

Mr. Alito and his wife, Rose, an elementary school principal, were involved parents. They instilled in their two children - Judge Alito's sister, Rosemary, is an employment lawyer in New Jersey - a respect for education and aspiration. Years later, at a family gathering, Ms. Alito regaled Professor Kmiec with the story of how Sam's grammar school work was so good, his teachers suspected that she had done it.

"They were not necessarily intellects but they were achievers," Joseph L. Bocchini Jr., the Mercer County prosecutor and a former state assemblyman, said of Judge Alito's parents. "They didn't subscribe to 'Go do your homework now and then watch TV later on.' It was, 'Go do your homework now and, after you do it, go find some other way to improve yourself.' "

David J. Grais, who had the bottom bunk and Judge Alito the top when they roomed together at Princeton, said the ideal of public service ran in the family. "He always knew he was headed for public service because he always looked up to his father," Mr. Grais said.

The senior Mr. Alito never advertised his children's accomplishments, said William E. Schluter, a former state senator. But Mr. Schluter got him to reveal Sam's SAT scores. "I dragged it out of him," Mr. Schluter said. "In those days, there were four tests and a perfect score was 800. He said he got two 800's, one 796 and he slipped on the fourth one and got a 780."

John R. Lacey, a former Hamilton Township councilman, said Mr. Alito would respond to any compliments about his son with a smile and a simple, " 'thank you,' and that's it." Mr. Alito and his son shared many traits, Mr. Lacey added. "It's an inherited personality," he said. "There was no flamboyance in the family. Just very solid, very detail-oriented, very sure of who they were."

At Steinert High School, Samuel Alito Jr. was intensely focused on school and family, former classmates say. He was class valedictorian and notable on the debate team for his ability to synthesize ideas. If he had political views at that time, said Andrew W. Spisak, a fellow debate team member, they were not terribly apparent.

"There was a lot of stuff going on with the Vietnam War and the assassination and such," Mr. Spisak said. "Martin Luther King was assassinated and Robert Kennedy was killed just a few days before graduation. I don't think his reaction was any different than anyone else's - shocked."

As a parent, Judge Alito appears to follow his parents' model. Hilary Monaco, a friend and neighbor, said she and Judge Alito spent many hours coaching the high school mock trial team. He taught the students, including his son, Philip, the rules of evidence and how to write opening and closing statements. In 2001, the team made it to the county semifinals - its best performance, she said.

Judge Alito, who drives an aging Ford Taurus to work, is more likely to talk about his two children - Philip, a student at the University of Virginia, and Laura, a star high school swimmer - than about his career or himself.

Recently, he and his wife, Martha-Ann, had dinner at the home of Mr. Panzano, a retired technology executive who lives nearby. They talked about food, children, theater and baseball. When Mr. Panzano's wife, Susan, raised the subject of Harriet E. Miers, then the Supreme Court nominee, Mrs. Alito suggested that her husband's chances of reaching the court had dissipated, Mr. Panzano recalled.

True to form, Mr. Panzano said, Judge Alito said nothing.

"I've known him 15 years, I don't think he's ever once mentioned anything about his work," Mr. Panzano said. He also said, "Sam doesn't talk politics. I have no idea which way he votes."

As for his Roman Catholicism, Professor Kmiec said Judge Alito rarely brings it up.

"I think faith for Sam is a regularizing experience in the sense of bringing order to the world," said Professor Kmiec, who is also Catholic. "It's a community in which you obligate yourself to others and therefore feel part of something that's outside of yourself. I think that understanding of faith is not much different from the understanding of faith that I would bet that Rose and Sam Alito, his parents, had."

'Another Level of Smart'

At Princeton, classmates recall, Samuel Alito welcomed the arrival of women on campus shortly after starting his studies there. "We were quite pleased to see the change," said Clyde E. Rankin, a lawyer in Manhattan who was a classmate. Later, Mr. Alito helped several classmates write a report supporting a right to privacy that extended to one's bedroom.

But one student recalled that Mr. Alito advised against canceling campus activities to protest the Vietnam War, arguing it would limit people's right to go on with their lives. "People are understating how deeply conservative he is - deeply in his bones," said the classmate, Samuel L. Lipsman.

Mr. Alito arrived at Yale Law School in 1972, toward the end of the antiwar movement, a clean-cut, studious young man with a close circle of sometimes clean-cut, studious Princeton friends. The campus was overwhelmingly liberal. Among the handful of identifiable conservatives on the faculty was Robert H. Bork, whom President Reagan later nominated unsuccessfully for the Supreme Court.

Mr. Alito, then, stood somewhat apart from many of his classmates.

"The law school pretty much marches on its own," said Steven B. Duke, a longtime professor at Yale. "I think probably it's always been a bit left-leaning, maybe for the last half-century."

Whether Samuel Alito's politics were apparent or not, his brains certainly were.

"This was 33 years ago, but I'm sitting in the back of a classroom and this guy sitting in the front who never opened his mouth in the first two or three months raises his hand and is called on," recalled Peter Goldberger, who is now a lawyer in Ardmore, Pa. "And I said, 'Oh my God. That's what smart is about.' You're in a room of 75 people you don't know and then you realize there's another level of smart."

Mark Dwyer, a former Yale roommate who is now an assistant Manhattan district attorney, recalled that Mr. Alito seemed put out when they were assigned to different constitutional law classes in their first year. Mr. Alito got Charles A. Reich, who in his best-seller, "The Greening of America," had seemed to suggest that hippies would save the world. Mr. Dwyer got the impression that "Sam was jealous I had Bork."

Roe v. Wade was decided the following year. "I had Bob Bork for my constitutional law class and I remember him railing at how unprincipled, how unconnected to the language of the Constitution, that decision was," said Dennis M. Grzezinski, a former classmate who is now a lawyer in Milwaukee. "But I can't recall what either I or the others had to say about it."

Samuel Alito racked up prize after prize for his research, his writing, his skill at oral argument. He published an award-winning note in The Yale Law Journal that argued against reading too much about a justice's philosophy into his rulings. Commentators had misinterpreted two rulings, he wrote, "because they attempted to discern the motivations or long-term intentions of the justices from the written opinions."

Any advice for Judge Alito as he begins the confirmation process? Judge Bork was asked recently.

He laughed.

"He doesn't need my advice," he said. "The important thing for him to do is remain calm and don't promise his vote on any issue. But I'm sure he knows that."

Reporting for this article was contributed by Alison Leigh Cowan, Richard Lezin Jones, Patrick McGeehan and David E. Rosenbaum.

Court Choice Is Conservative by Nature, Not Ideology, NYT, 7.11.2005,
https://www.nytimes.com/2005/11/07/
politics/politicsspecial1/court-choice-is-conservative-by-nature-not.html

Judge Seen

as Favoring Federal Constraint

November 6, 2005
The New York Times
By NEIL A. LEWIS

WASHINGTON, Nov. 5 - In his 15 years on the federal appeals court in Philadelphia, Judge Samuel A. Alito Jr. has provided just a few direct statements on the intense legal debate over how power should be shared between the federal government and the states.

To some scholars, those occasions have been revealing and significant and suggest that if confirmed to the Supreme Court, Judge Alito might be an aggressive leader in expanding state authority at the expense of the federal government.

In 1996, Judge Alito voted to strike down a recently enacted federal law that limited the possession of machine guns, in the case of United States v. Rybar. In his dissent from the opinion of the three-judge panel of the United States Court of Appeals for the Third Circuit, he said a gun dealer in Pennsylvania should not have been convicted because Congress did not constitutionally have the right to enact the law on machine guns.

In that case, Judge Alito relied on a Supreme Court ruling from 1995, United States v. Lopez, that struck down a federal law providing strong penalties for possessing guns in the immediate vicinity of a school. He not only disagreed with judges on the appeals court, but also those of at least three other circuit courts that upheld the law on machine guns.

Judge Alito thus seemed to throw in his lot with those legal theorists, including many current justices, who say Congress has assumed too much authority in recent decades and needs to be brushed back while the power of states should be restored.

"It shows a man who is strongly committed to the notion that the federal government is one of limited powers and is willing to limit that federal power," said Prof. Robert C. Post of the Yale Law School, an authority on federalism.

Although the dissent appears to place Judge Alito in the conservative camp that is trying to reshape Congressional authority and the relationship with the states, it puts him generally in line with the record of Justice Sandra Day O'Connor, whom he would succeed.

In the machine gun case, Judge Alito wrote that if the Lopez ruling was not "some constitutional freak" the machine gun law could not be enforced, because mere possession of a machine gun had no more effect on interstate commerce than possessing firearms within a school zone.

"If there are distinctions of constitutional dimension here, they are too subtle for me to grasp," he wrote.

Judge Dolores K. Sloviter, writing for the majority, said possession of machine guns affected the market for such weapons and inevitably had effects on interstate commerce. She said Judge Alito erred in not recognizing that school zones were discrete areas unlikely to have an effect on interstate commerce while the law was not confined to narrow geographic areas but regulated "a class of firearms - machine guns - in a much more dispersed and extensive area."

The Supreme Court did not review the case.

Charles Fried, a professor at Harvard Law School and a former Justice Department colleague of Judge Alito, called Judge Alito's dissent "a good faith effort to make sense out of what the Supreme Court said" in the Lopez case.

Moreover, Professor Fried added, the judge's views were similar to those of Chief Justice John G. Roberts Jr. when he was an appeals court judge. In that position, Judge Roberts questioned whether the Endangered Species Act might not apply to the arroyo toad, because the animal lived only in California and had no apparent connection to interstate commerce.

The Supreme Court's decisions reining in Congressional power did not stop with the Lopez case. In 2000, the court held that employees could not sue states for violating the federal law against age discrimination. In 2001, it ruled that states were immune from suits on employment discrimination suits in connection with the Americans With Disabilities Act.

In the middle of its constitutional journey, the court made a sharp detour in 2003 when it ruled that the Family and Medical Leave Act was different and that employees could sue states over violations of the federally guaranteed right to take off time for family emergencies.

The majority in that 6-to-3 decision, which included Chief Justice William H. Rehnquist and Justice O'Connor, said the medical leave act was different because its goal was to "protect the right to be free from gender-based discrimination in the workplace" by removing "the pervasive sex-role stereotype that caring for family members is women's work."

That ruling may have surprised Judge Alito who, taking his cues from the earlier Supreme Court opinions, ruled in 2000 that the Family and Medical Leave Act did not apply to state employees. In that case, at least, he placed himself further in the direction of invalidating federal laws than Chief Justice Rehnquist and Justice O'Connor were willing to go.

Judge Seen as Favoring Federal Constraint, NYT, 6.11.2005, http://www.nytimes.com/2005/11/06/politics/politicsspecial1/06federalism.html

Court Nominee

Has Paper Trail Businesses Like

November 5, 2005
The New York Times
By STEPHEN LABATON

WASHINGTON, Nov. 4 - Judge Samuel A. Alito Jr. has reliably favored big-business litigants as he has pushed the federal appeals court in Philadelphia in a conservative direction.

His extensive paper trail of 15 years of opinions reveals a jurist deeply skeptical of claims against large corporations. A review of dozens of business cases in which Judge Alito has written majority or dissenting opinions or cast the decisive vote shows that, with few exceptions, he has sided with employers over employees in discrimination lawsuits and in favor of corporations over investors in securities fraud cases.

Judge Alito, President Bush's choice to replace Sandra Day O'Connor on the Supreme Court, cast the decisive vote in a case involving a major steel company, and in another involving a large chemical maker, over environmentalists in pollution cases.

He has set aside punitive damages in some cases and reduced them in others; has handed down dissents that, if they became law, would impose higher burdens for workers to successfully sue their employers for discrimination; and has routinely upheld restrictive arbitration clauses that have limited the remedies available to plaintiffs. (In a rare instance of setting aside an arbitration decision, he reversed an arbitration panel that had ordered the reinstatement of an intoxicated seaman on a moored oil tanker against the wishes of his employer, Exxon.)

In several cases, Judge Alito has found for the defendants facing accusations of antitrust violations, including one case in which he twice found in favor of a monopolist, 3M. (In that case, LePage's v. 3M, his view was rejected by a vote of 7-to-3 by the full circuit.) And by articulating a narrow view of the Commerce Clause of the Constitution, he is viewed as a judge who would be skeptical of the involvement of federal regulators in matters he views to be strictly within the province of state officials.

It is such business cases, which arise far more often than privacy and abortion cases, that are the bread and butter of the appeals courts and the Supreme Court. And, according to his supporters and detractors, it is where Judge Alito has left his mark in the United States Court of Appeals for the Third Circuit.

Judge Alito's record in business cases presents some political strengths and weaknesses as he heads into his confirmation hearing, scheduled to begin Jan. 9. Major business groups are preparing to spend millions of dollars to lobby on his behalf, and may help him with pivotal Democrats. Liberal groups, meanwhile, have begun to cite his record to make the case that he is insensitive to the plight of minorities and the environment.

The judge's reputation over the last 15 years was such that corporate lawyers relished the prospect of his participation in cases, while plaintiff's lawyers hoped to avoid him.

"We're always happy to see Judge Alito on the panel," said Robert C. Heim, the head of the litigation department at Dechert, a large law firm based in Philadelphia that represents some of the nation's largest corporations, typically facing accusations of antitrust, securities or corporate law violations. "He's generally a good judge for the cases we argue because we generally argue that the state of law does not favor the case that the plaintiffs are making and he's generally very receptive to that. He doesn't give an expansive reading to antitrust laws or securities laws."

Officials at the National Association of Manufacturers and the United States Chamber of Commerce said that as they combed through his record, they had been favorably impressed with what they had learned.

"He has come down on a host of issues in a way that the business community would prefer," said Robin Conrad, senior vice president of the National Chamber Litigation Center, the legal arm of the United States Chamber of Commerce, who has been researching Judge Alito's opinions. "This is not a guy who is going to go off the reservation."

Officials at the National Association of Manufacturers, which is also expected to endorse the nomination formally in the coming weeks, agreed.

"Judge Alito has a reputation for strict interpretation of the Constitution, and that stands him in good stead with us," said John Engler, the association's president and a former Republican governor of Michigan.

Lawyers for organizations often on the other end of lawsuits involving businesses are alarmed about Judge Alito's record.

"We're concerned, based on his record, about what his appointment would mean for access to the courts by the people we represent," said Glenn Sugameli, senior litigation counsel at Earthjustice, a law firm that represents environmental groups and individuals seeking enforcement of environmental laws. "We're also concerned, based on his record, that his interpretation of the Commerce Clause threatens the enforcement of such laws as the Clean Air Act, the Clean Water Act and the Endangered Species Act."

To be sure, in a small handful of instances the judge has ruled against the interests of business. In 1991, a year after he got to the bench, for instance, he issued a dissent in which he ruled that foreign seamen on American-flag ships should be covered by the minimum wage provision of the Fair Labor Standards Act. And in a dissent from a 2000 decision, he interpreted the statute-of-limitations provision of a race discrimination law to the benefit of the plaintiff in an employment case. In a third case, he voted with two other judges to dismiss an industry challenge to tougher environmental law standards in coal mining.

But those three cases, Cruz v. Chesapeake Shipping, Zubi v. AT&T, and Pennsylvania Coal Association v. Bruce Babbitt, are considered by both supporters and critics to be exceptions.

Cases favoring the defendant companies, like Sheridan v. E.I. du Pont de Nemours and Bray v. Marriott Hotels are far more prevalent. In Sheridan, 12 judges on the Third Circuit said that a hotel employee, Barbara Sheridan, had provided enough evidence of sex discrimination to permit her lawsuit to proceed to trial. Judge Alito, the sole dissenter in the case, would have made it easier for a defendant to rebut claims such as the one brought by Ms. Sheridan.

Similarly, Judge Alito found himself in dissent in Bray, another case involving a hotel worker making a claim of discrimination. The majority opinion sharply criticized Judge Alito's dissent, saying it "would immunize 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."

In securities law cases, Judge Alito has taken a similarly dim view of some of the lawsuits brought by investors. In one case, In Re Burlington Coat Factory, for instance, investors filed a securities fraud suit after the company's stock dropped precipitously following poor earnings that came after favorable projections by company executives.

Dismissing the case in part on the grounds that it failed to satisfy Rule 9 (b) of the Federal Rules of Civil Procedure, which governs pleading requirements in fraud cases, Judge Alito wrote: "To allow plaintiffs and their attorneys to subject companies to wasteful litigation based on the detection of a few negligently made errors found subsequent to a drop in stock price would be contrary to the goals of Rule 9 (b), which include the deterrence of frivolous litigation based on accusations that could hurt the reputations of those being attacked."

In environmental law, Judge Alito has generally also followed a narrow reading of the law. He cast a deciding vote in a 1997 case, Public Interest Research Group v. Magnesium Elektron, which dismissed a $2.6 million fine against the company for violating the Clean Water Act and found that the public interest group did not have the authority to bring a lawsuit. In other environmental cases, like W.R. Grace v. E.P.A., and United States v. Allegheny Ludlam, he has sided with large corporations seeking to overturn fines and remedial actions ordered by the Environmental Protection Agency.

Court Nominee Has Paper Trail Businesses Like, NYT, 5.11.2005, http://www.nytimes.com/2005/11/05/politics/politicsspecial1/05legal.html

Nominee Is Said

to Question Church-State Rulings

November 4, 2005
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Nov. 3 - Senators of both parties said Thursday that Judge Samuel A. Alito Jr., President Bush's choice for the Supreme Court, had told them he believed the court might have gone too far in separating church and state.

Senator John Cornyn, a Texas Republican on the Judiciary Committee, said that Thursday in a private meeting Judge Alito expressed empathy for "the impression that the court's decisions were incoherent in this area of the law in a way that really gives the impression of hostility to religious speech and religious expression."

Senator Robert C. Byrd, Democrat of West Virginia, said after his own meeting with the judge that he, too, was "very satisfied" that Judge Alito had said he believed the court had erred by going too far in prohibiting government support for religion at the risk of hampering individual expression of religion.

"He indicated that people have a right, a very distinct right, to express their religious views," Mr. Byrd said.

Although the senators said Judge Alito had not told them how he would rule in specific cases, their comments were the first indication of his views concerning one of the most contentious issues before the court.

Many liberals and religious minorities view the court's jurisprudence on separation of church and state over the last 50 years as a bedrock principle of American life. But anger over the court's rulings against school prayer, government displays of the Ten Commandments and other public forms of religious expression also played a major role in the birth of a conservative Christian political movement.

The selection of Judge Alito, a conservative federal appeals court judge, has ignited passions on both sides of the aisle, in part because he would succeed Justice Sandra Day O'Connor, who provided the swing vote on abortion rights and other issues.

The intensity is so high that some members of Congress and outside groups worry that the divide over Judge Alito could lead to a filibuster. The so-called Gang of 14 - seven Democrats and seven Republicans who banded together this year to avert such a shutdown of the nominations process - met Thursday and publicly proclaimed their agreement intact, at least for now.

Judge Alito's conversations about religion took place as People for the American Way, the well-financed liberal advocacy group, said it would begin running television commercials this weekend opposing his confirmation.

The organization is well known for its television advertisements, starring Gregory Peck, in opposition to the Supreme Court nomination of Judge Robert H. Bork. But it has never run commercials so soon after a selection.

The group's new advertisement attacks Judge Alito as a favorite of conservatives. "First the radical right vetoed Harriet Miers to replace Sandra Day O'Connor," the script reads. "Now Bush has named their handpicked candidate, Samuel Alito."

A White House spokesman, Steve Schmidt, said, "It is unfortunate that interest groups like People for the American Way that are far outside the mainstream of American politics are trying to degrade what should be a dignified process."

The leaders of the Senate Judiciary Committee on Thursday scheduled confirmation hearings for Jan. 9, bucking pressure from the White House to hold the hearings before Christmas.

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, said he believed the White House's timetable was "not, in my judgment, practical." Mr. Specter said the committee's staff needed time to digest the roughly 3,750 cases on which Judge Alito voted and 300 opinions he wrote.

As Judge Alito continues to pay courtesy calls to senators, the Gang of 14 has become a subject of intense speculation because of the possibility that Democrats might try to stop his confirmation with a filibuster. Republicans are threatening to overcome such a move by calling a majority vote to change the Senate rules, a move known as the "nuclear option." The 14 senators have pledged to block the rule change or to allow filibusters only in "extraordinary circumstances."

Two Republican members of the group, Senators Mike DeWine of Ohio and Lindsey Graham of South Carolina, have said that if Democrats stage a filibuster against Judge Alito's confirmation, they would support a rule change. But on Thursday, members of the group said they had not yet confronted such a possibility.

After the group's Thursday meeting, Senator Joseph I. Lieberman, Democrat of Connecticut, said "The gang of 14 stands by the agreement of the 14."

Senator Ken Salazar of Colorado, a Democratic member of the group, argued that the Bush administration had violated the spirit of the compromise by failing to consult with Senators before announcing the nomination.

"I have a sense that what will happen with this appointment is that we are going to see America be more divided than it ever has been," he said, "and part of that is because it wasn't the right kind of process."

Senator Lincoln Chafee of Rhode Island, a Republican member of the group and one of the handful in his party who support abortion rights, said after meeting with Judge Alito that he remained concerned about the judge's approach to that issue, to the scope of federal power under the Constitution, and to the "separation of church and state."

" 'Red flags' may be a little early, but concerns, caution flags," Mr. Chafee said.

Mr. Cornyn, a former Texas attorney general, said he and Judge Alito had discussed the Supreme Court case Santa Fe Independent School District v. Doe, which Mr. Cornyn argued in 2000 and lost. The court ruled that the Constitution did not allow student-led prayer before a public high school football game.

"He did commiserate with me a little bit," Mr. Cornyn said. "I hope that he will be able to give the United States Supreme Court's ruling some coherence, because frankly they are way out of step with what the founding fathers intended."

    Nominee Is Said to Question Church-State Rulings, NYT, 4.11.2005, http://www.nytimes.com/2005/11/04/politics/politicsspecial1/04confirm.html

Ideology Serves

as a Wild Card on Court Pick

November 4, 2005
The New York Times
By SCOTT SHANE

WASHINGTON, Nov. 3 - Senator Patrick J. Leahy, Democrat of Vermont, concedes that Judge Samuel A. Alito Jr. - a brainy product of Princeton and Yale, a former federal prosecutor and Supreme Court litigator and an appellate judge for 15 years - has the qualifications to serve on the nation's highest court.

But Mr. Leahy says unapologetically that the stellar résumé is not enough. He says he plans to assess Judge Alito on ideological grounds.

"This is not over competence," Mr. Leahy, ranking Democrat on the Senate Judiciary Committee, said. "He certainly is competent. This is the whole issue of ideology, and if the ideology is one that you go in with a predetermined agenda, then I don't care if they are a Democrat or a Republican. They don't belong on the Supreme Court."

The debate over what criteria senators should use in deciding how to vote on Supreme Court nominees is almost as old as the court itself, because the Constitution offers the scant instruction that justices should be appointed "with the advise and consent of the Senate."

Should education, temperament, experience and integrity be the sole determining factors? Or should ideology, a nominee's political leanings and predictable stands on the hot judicial disputes of the day, also have a major role?

As Judge Alito continued on Thursday to make the rounds on Capitol Hill, senators of both parties examined his views on issues like the separation of church and state.

Senator Joseph I. Lieberman, Democrat of Connecticut and a member of the bipartisan moderates known as the Gang of 14, said it was too soon to decide whether Judge Alito's conservatism amounted to the "extraordinary circumstances" that the group has agreed might justify a filibuster. [Page A22.]

Mr. Lieberman said, "I think ideology is a relevant thing."

The nomination poses questions about the unwritten rules to decide on a confirmation. No one has questioned Judge Alito's knowledge, experience or intellect. But if he succeeds Justice Sandra Day O'Connor in what has been a swing seat on critical issues, his staunchly conservative views could have a profound effect on the court and the nation.

"It presents the issue in a very crystalline form," said Richard D. Friedman, a law professor at the University of Michigan. "Alito is superb on all the measures of qualifications. All that's left to oppose him on is ideology."

Professor Friedman argues that ideology should not have a dominant place in the Senate consideration.

"The aggressively ideological opposition distorts the confirmation process," he said. "Treating it as a political matter may encourage a view of the court as nothing more than another political institution."

But Lee Epstein, a professor of law and political science at Washington University, said that to expect senators to engage in an apolitical confirmation process was unrealistic.

"If their constituents think ideology is a good reason to vote against a nominee," Professor Epstein said, "they're going to vote against him."

Of the 156 Supreme Court nominees since the court was created, 35 have been rejected or withdrawn, according to the Congressional Research Service. Most of the 35 were clustered in times of turmoil like the Civil War and Reconstruction, when politics often trumped qualifications.

In 1869, more than a century before bloggers and cable pundits would turn up the heat on nominees, President Ulysses S. Grant nominated Ebenezer Rockwood Hoar, widely considered one of the nation's top legal minds. After seven bitter weeks, the Senate voted him down, 33 to 24, in part because he had pressed for the selection of federal judges on the basis of legal talent rather than political allegiance.

No nominee has been voted down since Robert H. Bork, President Ronald Reagan's conservative nominee in 1987. Harriet E. Miers withdrew last month because of criticism of her credentials, not her views.

A statistical model developed by Professor Epstein and her colleagues, which incorporates newspaper editorials and other sources, suggests that confirmations have steadily grown more polarized over ideology in recent decades.

Since 1937, her model shows, the importance of nominees' qualifications has not changed. But ideology took on greater importance beginning in the 50's, with Brown v. Board of Education and conservative criticism of the Warren court. Ideology "exploded" after the Senate rejected Mr. Bork, Professor Epstein said.

The bitterly contested confirmation hearings for Justice Clarence Thomas, who was accused of sexual harassment by a former employee, Anita F. Hill, played out before a rapt national television audience.

To some, the court's role in settling the 2000 presidential election seemed to shatter once and for all any notion that it occupied some antiseptic zone untouched by politics.

Senators of either party who serve long enough usually find themselves on both sides of the ideology question. In 1967, Senator Edward M. Kennedy, Democrat of Massachusetts, backing Thurgood Marshall's nomination, urged his colleagues not to reject the nominee simply because they might not share his views.

"We are really interested in knowing whether the nominee has the background, experience, qualifications, temperament and integrity to handle this most sensitive, important and responsible job," Mr. Kennedy said.

When Judge Alito was announced on Monday, Mr. Kennedy, although acknowledging that he was "clearly intelligent and experienced on the bench," said he "could very well fundamentally alter the balance of the court and push it dangerously to the right."

Such elasticity is bipartisan, of course. "The hypocrisy on the Republican side is just as blatant," Lanny J. Davis, a Democratic lawyer who worked in Bill Clinton's White House, said. "Everybody should just admit it. Substance matters. It's not just the résumé."

In September, when 22 Democrats voted against the confirmation of Chief Justice John G. Roberts Jr., some Republicans accused them of blatant partisanship. The Republicans drew a pointed contrast with the treatment of Mr. Clinton's nominees, Justice Ruth Bader Ginsburg, who received just three no votes in 1993, and Justice Stephen G. Breyer, opposed by just nine senators in 1994.

But at least two Republican senators who were not in office in 1993, Jeff Sessions of Alabama and John Cornyn of Texas, have said they would not vote for Justice Ginsburg today.

"Let me tell you why I wouldn't vote for Ruth Bader Ginsburg," Mr. Sessions said. "Because in her own writings and the positions that that she took, she clearly evidenced a philosophy of judicial activism.

"If a judge has strong political views, it is perfectly appropriate to inquire whether those views would affect their legal reasoning and cause them not to be objective and fair."

Professor Epstein and other legal scholars are wary of some of the terms thrown about in this debate. On Roe v. Wade, the abortion ruling that has stood as a precedent since 1973, she asked, would not a "judicial conservative" be a person who would uphold it and a "judicial activist" one who would overturn it? That is the opposite of the way such terms are often used.

"I told my class the other day I have no idea what judicial activism is," Professor Epstein said. "Maybe the best definition of a judicial activist is a judge you don't like."

David D. Kirkpatrick contributed reporting for this article.

    Ideology Serves as a Wild Card on Court Pick, NYT, 4.11.2005, http://www.nytimes.com/2005/11/04/politics/politicsspecial1/04ideology.html

Alito hearings, vote set for January

Thu Nov 3, 2005 7:55 PM ET
Reuters
By Joanne Kenen

WASHINGTON (Reuters) - The Senate Judiciary Committee on Thursday brushed aside White House requests for an early hearing on Supreme Court nominee Judge Samuel Alito and scheduled hearings and a vote in January.

"It simply wasn't possible to accommodate the schedule that the White House wanted: before Christmas. It just couldn't be done. We have to do it right. We can't do it fast," said Judiciary Committee Chairman Arlen Specter, a Pennsylvania Republican, announcing the timetable alongside Patrick Leahy of Vermont, the top Democrat on the panel.

The week of committee hearings will begin on January 9, with a vote in the full Senate planned for January 20.

President George W. Bush nominated Alito to replace Sandra Day O'Connor on the high court. The nomination is controversial because Alito's record suggests he is far more conservative than O'Connor, who often casts a swing vote on the closely divided nine-member court.

"We will be going on a very fast pace. But we're doing one that is reasonable," Leahy said.

Bush wanted Alito in place before the court begins hearing new cases in January, but O'Connor has agreed to serve until her successor is approved. It's possible some cases would have to be reargued, depending on when O'Connor finally steps down.

Specter and Leahy both said their staffs -- who have worked at a hectic pace during the confirmation of Chief Justice John Roberts and the failed nomination of Harriet Miers -- need time to review Alito's voluminous legal record.

He has served 15 years on a federal appeals court and was a government lawyer before that.

"We had hoped the hearings would be finished by the end of the year. However, we have tremendous confidence in Sen. Specter, who handled Chief Justice Roberts' confirmation process so well. We are encouraged by the bipartisan momentum that has set the vote on the Senate floor for January 20th," White House spokeswoman Dana Perino said from Argentina, where Bush is attending a summit of the Americas.

Leahy said a slower process could actually end up helping Alito.

"Frankly, had Chief Justice Roberts been rammed through on an accelerated schedule that some in the White House wanted, he would not have gotten anywhere near the number of votes he got," Leahy said. Roberts was approved by a 78-22 vote.

GOOD START

Senate aides noted that even under the January timetable, Alito could be confirmed before Bush's State of the Union address, usually held in late January.

Although nomination battles are unpredictable, White House officials say Alito is off to a good start. He has held private meetings with numerous senators this week, and a bipartisan group of moderates that could hold the key to his confirmation has adopted a calm "wait and see" attitude after its first meeting about Alito on Thursday morning.

The so-called "Gang of 14," who earlier helped to avert a Senate showdown over Bush's judicial nominees, could determine whether liberals would be able to use a filibuster -- a procedural move that lets 40 of the Senate's 100 members block a nomination.

Two of the more conservative "gang" members, Lindsey Graham of South Carolina and Mike DeWine of Ohio, both Republicans, have strongly praised Alito and expressed doubts that Democrats would be justified in trying to filibuster him. But they promised to work with the group of 14 as the process unfolds.

Bush nominated Alito after Miers withdrew from consideration amid a conservative uprising against her as well as complaints that her grasp of constitutional law failed to impress many senators, particularly members of her own party.

(Additional reporting by Thomas Ferraro, Vicki Allen and Donna Smith)

    Alito hearings, vote set for January, R, 3.11.2005, http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=2005-11-04T005525Z_01_EIC368223_RTRUKOC_0_US-USA-COURT-ALITO.xml

Cases

Alito's Dissents

Show Deference to Lower Courts

November 3, 2005
The New York Times
By ADAM LIPTAK
and JONATHAN D. GLATER

Judge Samuel A. Alito Jr. dissents slightly more often than the typical appeals court judge, and his dissenting opinions are almost always more conservative than the majority's.

In the several hundred cases he heard over 15 years on the United States Court of Appeals for the Third Circuit, Judge Alito dissented more than 60 times, often taking issue with decisions that sided with criminal defendants, prisoners and immigrants.

He frequently voted in favor of the government and corporations in these dissents. He generally deferred to what he called the good faith judgments of other participants in the justice system, including police officers, prosecutors, prison wardens, trial judges and juries. He appeared particularly reluctant to order new trials over what he called harmless errors in the presentation of evidence or in jury instructions.

Judge Alito was appointed by the first President Bush. Academic studies of dissenting opinions generally predict that judges appointed by Republican presidents will dissent more often in cases in which both of the other judges on three-judge panels were appointed by Democratic presidents.

But Judge Alito does not follow that pattern: he dissented in 4 cases in which both of the other judges were appointed by Democrats and in 26 in which they were both appointed by Republicans.

His court, which hears cases from Delaware, New Jersey, Pennsylvania and the Virgin Islands, is by some measures the second-most liberal in the country, after the United States Court of Appeals for the Ninth Circuit, in San Francisco.

Cass R. Sunstein, a law professor at the University of Chicago, reviewed 41 of Judge Alito's dissents and said he had been able to code about half of them in ideological terms.

"Somewhere between 100 percent and 85 percent are to the right of the majority, depending how you count," Professor Sunstein wrote in an e-mail message.

The Supreme Court rejected the position set out by Judge Alito in a dissent in an abortion case. But in at least three other cases, it adopted the position advanced in his dissent.

Frank B. Cross, a law professor at the University of Texas who has compiled a database tracking how the Supreme Court reviews appellate decisions, said: "This is the highest of anyone in the database. It shows that when his court took an important and controversial case and got it wrong, from the perspective of the Supreme Court, he identified that and dissented. Indeed, his dissent may have been part of what got the Supreme Court's attention."

One theme that runs through Judge Alito's dissents is deference to the views of the people and the agencies closest to the facts and thus, in his view, best situated to make decisions.

He voted to dismiss a case, already rejected by a lower court, brought by Inez Baker and three of her children, who said they had been mistreated by the police when they happened to visit an apartment during a drug raid.

"There was," Judge Alito wrote, "a good likelihood that visitors to the apartment were drug buyers. While it was certainly possible that there would also be some innocent visitors to the apartment (such as the Bakers), I think that there was probable cause to search anyone found on the premises."

Judge Alito almost always showed reluctance to interfere with a case after a jury had decided it. In a 1991 appeal in a murder case from the Virgin Islands in which the defendant had claimed self-defense, the trial judge failed to tell the jury that the prosecution had to prove that the killing was not in self- defense. The majority reversed on that ground.

Judge Alito acknowledged that it was possible that the instructions given confused the jury. But, he wrote, "the mere possibility of prejudice to the defendant is not enough to show plain error."

In a 1997 case, the majority ordered a new trial for a man whose lawyer had advised him to plead guilty to possession of a firearm. Judge Alito disagreed, writing that the lawyer's advice "is properly viewed under our precedents as a tactical decision that, while perhaps debatable, remains safely within the expansive realm of constitutional reasonableness."

When a 1995 panel majority showed special consideration to a Pakistani man seeking to avoid deportation because he was caring for his sick brother, Judge Alito objected. He said that the decision of the Board of Immigration Appeals, or B.I.A., deserved respect and that the board had ruled that humanitarian considerations were outweighed by the man's conviction 10 years earlier for conspiring to import a pound of heroin.

"The majority has usurped the B.I.A.'s place and weighed the relevant factors for itself - apparently in accordance with its own views of drug and immigration policy," Judge Alito wrote. "I cannot endorse this approach."

Federal courts hear relatively few personal injury cases, but Judge Alito dissented in four of them. In two, he voted against the injured plaintiff.

For example, after a truck driver lost a products liability trial against the manufacturer of his vehicle, the appeals court majority ordered a new trial, in part on the ground that the trial judge had improperly allowed the jury to hear that the driver was not wearing a seat belt. Judge Alito agreed that was a mistake but said the error was harmless.

But in other injury cases, Judge Alito would have let verdicts stand. In one, a group of doctors sought to have a jury's verdict against them overturned in a lawsuit by the parents of a girl who died as a result of a liver disease.

The doctors argued, Judge Alito wrote, "that they should escape all or part of the liability for their malpractice because the young woman and her parents were foolish to have followed their bad advice. The majority holds that the trial judge should have charged the jury on this defense. In my view, however, there is no evidence that the girl and her parents were negligent. Their only mistake was to trust the defendants' advice, which, although negligent, was not so implausible on its face that lay people should have known better than to have followed it."

Some judges, particularly when they are not writing for the majority, adopt a more freewheeling style in cases with quirky facts. Judge Alito, however, keeps a poker face.

In a false advertising case concerning whether Extra Strength Maalox Plus was right in saying that it is the "strongest antacid" - a claim begging for a little judicial levity, perhaps - Judge Alito sided, in studied, dry terms, with Mylanta II.

The characterization, Judge Alito wrote, "is not literally false with respect to liquid E.S.M.P. because liquid E.S.M.P. is superior to liquid Mylanta II at neutralizing acid in the laboratory. But as the district court found, E.S.M.P. is not 'strongest' at providing relief for humans."

The Alito dissents that have attracted the most attention are his 1991 opinion in Planned Parenthood v. Casey, voting to uphold a Pennsylvania law requiring women to notify their husbands before having abortions, and his 1996 opinion in United States v. Rybar, voting to strike down a federal law regulating machine guns on commerce clause grounds.

The Rybar case did not reach the Supreme Court, but Casey did. In 1992, the court rejected Judge Alito's views. But that case was the exception; in three other cases in which Judge Alito dissented, the court adopted his views.

His majority decisions have attracted less attention, Professor Cross said. "That's a sign that he's writing modest opinions," he said. "The Supreme Court is likely to take on an opinion that is broad."

    Alito's Dissents Show Deference to Lower Courts, NYT, 3.11.2005, http://www.nytimes.com/2005/11/03/politics/politicsspecial1/03legal.html?hp&ex=1131080400&en=06d8abaea7152c38&ei=5094&partner=homepage

The Designee

A Justice Not Like the Others

November 3, 2005
The New York Times
By TODD S. PURDUM

WASHINGTON, Nov. 2 - When Judge Samuel A. Alito Jr. listed his four favorite Supreme Court justices for Senator Richard J. Durbin of Illinois on Wednesday, the answer evoked that Sesame Street masterpiece, "One of These Things Is Not Like the Others."

Three of the names were no-brainers for a conservative advocate of judicial restraint like Judge Alito: Chief Justice William H. Rehnquist, Justice Byron R. White and Justice John M. Harlan.

But Justice William J. Brennan?

The William J. Brennan who was one of the most liberal members of the Rehnquist court - and one who, Chief Justice Rehnquist once complained, read his case memorandums in conference as if "reading aloud a rather long and uninteresting recipe," according to a new biography of Justice Sandra Day O'Connor by Joan Biskupic?

That William J. Brennan?

Chief Justice Rehnquist was a staunch conservative, who through the force of his intellect helped nudge the court rightward in his 33 years on the bench.

Justice White, a Democrat appointed by President John F. Kennedy, nevertheless often emerged as a conservative force, and wrote the 1973 dissenting opinion in Roe v. Wade (which Chief Justice Rehnquist joined) calling the majority's recognition of a constitutional right to abortion "an exercise of raw judicial power."

Justice Harlan was perhaps the most significant critic of the Supreme Court's activist trend under Chief Justice Earl Warren.

Appointed by Dwight D. Eisenhower, Justice Harlan wrote the concurring opinion in Griswold v. Connecticut, a 1965 case upholding married couples' right to contraception, citing the due process clause of the 14th Amendment.

Many legal scholars find that opinion more persuasive than Justice William O. Douglas's majority opinion, which cited a gauzy concept of constitutional "penumbras," or shadows, in which meanings and rights might be discerned.

And Justice Brennan, who died in 1997? He was a Roman Catholic from New Jersey, like Judge Alito, who told Mr. Durbin that he knew members of the Brennan family.

But what about Justice Antonin Scalia, with whom Judge Alito's name is sometimes linked?

Mr. Durbin said Judge Alito had excluded all sitting judges from his list.

    A Justice Not Like the Others, NYT, 3.11.2005, http://www.nytimes.com/2005/11/03/politics/politicsspecial1/03justice.html

Justices Explore U.S. Authority

Over States on Assisted Suicide

October 6, 2005
By LINDA GREENHOUSE
The New York Times

WASHINGTON, Oct. 5 - The question of assisted suicide reached the Supreme Court for the second time in eight years on Wednesday, although the profound issues of professional ethics and personal autonomy that have animated the national debate largely remained outside the courtroom.

Instead, lawyers for the federal government and for Oregon, the only state to have authorized physician-assisted suicide, argued over a single question: whether John Ashcroft acted within his authority as attorney general when he decided in 2001 that doctors would lose their federal prescription privileges if they followed the Oregon law's procedures and prescribed lethal doses of lawful medications for terminally ill patients who wanted to end their own lives.

This is a straightforward question of federal administrative law, the bread and butter of the Supreme Court's docket. A federal appeals court ruled last year that in enacting the Controlled Substances Act in 1970, Congress did not give the attorney general the unilateral authority to penalize doctors who follow state law in prescribing federally regulated medications. The case, now known as Gonzales v. Oregon, No. 04-623, is the Bush administration's appeal.

Chief Justice John G. Roberts Jr. was an active participant in the questioning. He asked Solicitor General Paul D. Clement, who was defending the Ashcroft action, for "the closest analogy you have, other than this case," in which the attorney general had "impinged on" a state regulation of medical practice.

When Mr. Clement began to describe the Food and Drug Administration's effort some years ago to stop the use of laetrile, an anticancer drug that was permitted in 17 states, Chief Justice Roberts cut him off. "That's the F.D.A.," he said. "I'm talking about the attorney general under this statute."

Mr. Clement, an admired Supreme Court advocate who speaks without notes, at first said he could not think of an example. Then he offered the government's prohibition against using marijuana for medical purposes, which the Supreme Court upheld in June.

This drew an objection from Justice David H. Souter, who said that Congress's desire to stop "drug pushing and drug abuse in the conventional sense" did not support the government's position on assisted suicide.

Despite the clearly confined scope of the issue before the court, it was equally clear that there was background music to this case, deep questions of social policy and of federal-state relations that attracted dozens of briefs for both sides from medical professionals, elected officials, and religious and policy organizations.

Justice Antonin Scalia sparred with Robert M. Atkinson, Oregon's senior assistant attorney general, over how to interpret the Congressional silence on assisted suicide. Congress did not mention it, Justice Scalia said, because "I would have thought that a doctor using drugs to kill a patient was unthinkable" when the Controlled Substances Act was passed. His point was that the Congressional silence left room for administrative regulation.

Mr. Atkinson said that to the contrary, Congress passed the law against the "backdrop of 200 years of responsible regulation of the practice of medicine" by the states and should be understood as having left to the states the aspects of drug use that it did not address directly.

Congress expected in 1970 that medical practice would continue to evolve, Mr. Atkinson said, noting that acupuncture and the use of Botox, among other medical practices, are regulated by the states without federal intervention.

"Assisting people to die is totally different," Justice Scalia objected.

"I disagree," Mr. Atkinson said, adding that there was growing attention to "end-of-life issues," including living wills and "do not resuscitate" orders. Congress assumed that "states were to be trusted to act responsibly, and that's what Oregon has done here," he said.

The Death With Dignity Act was approved twice by Oregon's voters and took effect in 1997. It requires patients who want to end their lives, and doctors who want to help them, to follow particular procedures. Patients must have a life expectancy of less than six months, as determined by two doctors; must be mentally competent and not suffering from impaired judgment due to depression or another psychiatric disorder; must make an initial request to the doctor and then wait 15 days before making a written request that is witnessed by two people; and must be advised of all alternatives, like hospice care and pain management. The doctor prescribes the drugs but may not administer them.

As of the last reporting period in 2004, 326 patients had received prescriptions and 208 actually used the medications to end their lives. The law's supporters maintain that the law is beneficial even to those terminally ill people who do not use the drugs, because they gain peace of mind from knowing that the end of life is under their control.

Mr. Clement's argument had barely begun before Justice Sandra Day O'Connor asked him to explain why, given his position, the attorney general does not punish doctors who use lethal drugs to carry out death sentences.

"Would it be open to a new attorney general who had a very different view of the death penalty" to adopt a regulation subjecting those doctors to losing their prescription privileges, she wanted to know.

Mr. Clement replied that use of lethal drugs for executions had been "effectively ratified" by Congress in a federal death penalty law it enacted in 1994, leading Justice Souter to observe that the federal law did not specifically authorize doctors to administer lethal drugs.

The justices' questions about a change of mind by the attorney general reflected the history of the administration's current policy. In 1998, a group of members of Congress, including Mr. Ashcroft, who was then a senator from Missouri, asked Janet Reno, the Clinton administration's attorney general, to use federal enforcement power to block the new Oregon law.

She replied that she lacked the authority to do so, because "the federal government's pursuit of adverse actions against Oregon physicians who fully comply with that state's Death With Dignity Act would be beyond the purpose of the C.S.A.," the Controlled Substances Act. Senator Ashcroft then helped sponsor a bill to prohibit assisted suicide, which did not pass.

Acknowledging the history, Mr. Clement said to Justice O'Connor: "This is an area where there are different approaches."

Justice Ruth Bader Ginsburg asked the solicitor general how he could reconcile the government's current position with the Supreme Court's view eight years ago that the states could appropriately innovate with physician-assisted suicide. In that case, Washington v. Glucksberg, the court refused to find a constitutional right to a doctor's assistance in dying, but left the door open for states to develop their own policies.

The administration's brief in that case, Justice Ginsburg noted, invited such a result. "Now you are rejecting that position," she said.

"We stand by the brief in Glucksberg," Mr. Clement said.

Just before the argument began, a fleeting moment in the courtroom underscored the inherent drama in the chain of events that had lifted Chief Justice Roberts into the Supreme Court's center chair. A member of the Supreme Court bar approached the bench to move for the admission of a dozen graduates of Pepperdine Law School.

It was Kenneth W. Starr, the former solicitor general, whom Chief Justice Roberts had served as principal deputy. Mr. Starr, who was a federal appeals court judge while in his 30's, was once widely considered a leading candidate for a Supreme Court seat. Now he is dean of a law school that overlooks the Pacific Ocean in Malibu, Calif., about as far from the center of action as it is possible to be.

"Dean Starr," Chief Justice Roberts said in acknowledgment, as their eyes met briefly.

"Mr. Chief Justice and may it please the court," Mr. Starr began.

    Justices Explore U.S. Authority Over States on Assisted Suicide, NYT, 6.10.2005, http://www.nytimes.com/2005/10/06/politics/politicsspecial1/06scotus.html

New Leader,

Tough Issues for Court in Transition

September 30, 2005
The New York Times
By LINDA GREENHOUSE

The Supreme Court that opens its new term on Monday will be a court in transition, neither what it was when nine justices last sat together in June, nor what it will be when Justice Sandra Day O'Connor's successor arrives, freeing her to leave the bench some months later than she had planned.

But it will be, indisputably, the Roberts Court.

To the most casual courtroom observer, the change will be obvious. A vigorous 50-year-old, the youngest chief justice since John Marshall took the oath 204 years ago at the age of 45, will be seated in the center chair instead of his mentor, the 80-year-old William H. Rehnquist, who labored to breathe through a tracheotomy tube and consequently could speak only in short bursts during the last months of his life.

There will certainly be other changes, less visible and immediate, as Chief Justice John G. Roberts Jr. places his stamp on an institution he first knew as a law clerk 25 years ago. What they will be is less predictable, but there are at least some grounds for informed speculation.

For example, in his clerkship year, the court issued opinions in 123 cases. Last term, the number was 74. The shrinking docket has been a source of frustration to lawyers who practice before the court, among whom John Roberts was a star performer before he became a federal judge two years ago.

At his Senate confirmation hearing this month, he suggested that he saw room for the court to hear and decide more cases. If that comes to pass, reversing a 15-year trend, it could be an indication that Chief Justice Roberts is exerting influence on his colleagues just as Chief Justice Rehnquist, who thought the court was taking too many cases, managed to do in the opposite direction.

In running the ''conference,'' the closed-door, twice-weekly meeting at which the justices discuss cases, Chief Justice Rehnquist prized efficiency and had little patience for extended conversation or second thoughts.

Some students of the court have attributed the lively and question-filled nature of the justices' oral argument sessions during the Rehnquist years to the fact that these sessions, one hour a case, provided the only occasion for the justices to interact at length as a group. If the justices now become more mellow on the bench, that could mean that the conference is giving them an opportunity for a real exchange of views.

The new chief justice will run the conference for the first time on Wednesday afternoon, when the justices will discuss and take tentative votes on the cases they hear on Monday and Tuesday. For lawyers who practice before the court, this transitional period presents an unusual challenge, in part because of the ambiguity of Justice O'Connor's position. It has been common in close cases for lawyers to pitch their arguments to Justice O'Connor, who often casts the deciding vote.

For as long as she remains on the court, she will hear arguments and vote on cases. But if a decision has not been issued by the time her retirement takes effect, her vote will not count. Her successor cannot vote retrospectively. Some important cases are therefore likely to result in 4-to-4 ties, giving the court the choice of rehearing the case or simply affirming the lower court opinion by the tie vote, an action that carries no precedential weight.

The court has already granted review in 48 cases, enough to fill the new term's argument calendar into February. The list includes cases likely to produce vigorous debates among the justices, leading to decisions that may help to define the Roberts Court. Abortion, religion, free speech, the death penalty and federalism are among the subjects at hand. The court's announcement on Tuesday that it was adding two campaign finance issues to the calendar raised the temperature of the new term considerably.

Appeals challenging Vermont's tight limits on candidates' spending provide an opportunity for the court to reconsider its 1976 decision, Buckley v. Valeo, that equated campaign spending with speech and has generally been interpreted as prohibiting such limits. The Vermont cases are Randall v. Sorrell, No. 04-1528, and Vermont Republican State Committee v. Sorrell, No. 04-1530.

The second campaign finance question is whether grass-roots advocacy groups should be exempt from limits that the McCain-Feingold law placed on political advertising paid from corporate treasuries in the weeks before Election Day.

Although the Supreme Court turned back a broad challenge to the law two years ago, that decision left uncertainty about whether a single-issue lobbying group, while organized as a corporation, could claim a First Amendment right to an exemption. The case is Wisconsin Right to Life Inc. v. Federal Election Commission, No. 04-1581.

The abortion case, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, with the argument scheduled for Nov. 30, raises substantive and procedural issues in the context of a New Hampshire law that requires girls younger than 18 to notify their parents or receive a judge's permission before obtaining abortions.

A federal appeals court invalidated the law because it lacked an exception for emergency situations. The Supreme Court has insisted that despite state-imposed restrictions, women must be able to terminate pregnancies that threaten their health. The case therefore poses a question about the breadth of the required ''health exception.'' It also raises the procedural question of the circumstances under which an abortion law that has not yet gone into effect can be challenged in court.

Another abortion case reached the court last week, an appeal by the Bush administration of a ruling that invalidated the federal law that bans the procedure that abortion opponents call ''partial-birth abortion.''

Five years ago, the court struck down a similar law in a case from Nebraska, 5 to 4, with Justice O'Connor in the majority and Chief Justice Rehnquist in dissent. If the court accepts the new case, the argument will not be until next spring, placing Justice O'Connor's successor in a position to cast the deciding vote.

On Wednesday, the court will hear one of the term's most high-profile cases, the Bush administration challenge to the only state law in the country that authorizes physician-assisted suicide. The question in Gonzales v. Oregon, No. 04-623, is whether the Controlled Substances Act authorizes the federal government to revoke the federal prescription license of any doctor, following the Death With Dignity Act in Oregon, who gives a terminally ill patient a lethal dose of prescription drugs.

While the case is principally one of Congressional intent and statutory interpretation, it has the federalism overtones of the medical marijuana case in the last term, as well as the resonance of the debate over assisted suicide. In 1997, the court rejected the argument that there is a constitutional right to assisted suicide, but at the same time invited continued state innovation with policies on behalf of terminally ill patients.

Bringing the federalism debate directly back to the court, the government is appealing a ruling that states do not have to give their prison inmates the protections of the Americans With Disabilities Act. The case, United States v. Georgia, No. 04-1203, will be argued Nov. 9 and presents another challenge to Justice O'Connor's successor. She voted as part of the 5-to-4 majority two years ago in rejecting state immunity and applying the disabilities act to require accessible courthouses.

Another case the government has brought to the court lies, at least from one point of view, at the intersection of free speech and gay rights. The question in Rumsfeld v. Forum for Academic and Institutional Rights Inc. (FAIR), No. 04-1152, is whether the government can withhold or withdraw its financial support of an entire university if any school within the university does not grant military recruiters the same access to students granted to others who come to the campus with offers of employment.

Many law schools have restricted military recruiting because they disapprove of the policy that bars military service by openly gay men and lesbians. In response, Congress passed the Solomon Amendment, which requires equal access to campuses as a condition on the receipt of federal grants and contracts.

    New Leader, Tough Issues for Court in Transition, NYT, 30.9.2005, http://query.nytimes.com/gst/health/article-page.html?res=9A03E2DA1330F933A0575AC0A9639C8B63&n=Top%2fReference%2fTimes%20Topics%2fPeople%2fR%2fRehnquist%2c%20William%20H%2e

SUPREME COURT ROUNDUP

Review Set for Evidence

in Murder Trial's Penalty Phase

April 26, 2005
The New York Times
By LINDA GREENHOUSE

WASHINGTON, April 25 - The Supreme Court agreed on Monday to decide whether a convicted murderer has the right, during the penalty phase of the trial, to present evidence that casts doubt on the jury's finding of guilt in an effort to avoid a sentence of death.

The court accepted a death-penalty case from Oregon to answer a question that has divided the state and lower federal courts in the years since an ambiguous Supreme Court opinion addressed it in 1988. The state is appealing a ruling by the Oregon Supreme Court that gave a defendant the right to present evidence of an alibi that, if accepted in the penalty phase, would show that he could not have been at the scene of the double murder for which the jury had just convicted him.

The Supreme Court's precedents make clear that in a capital murder trial's penalty phase, which has many attributes of a separate trial, the defendant must be able to offer "any aspect" of his personal background or of the circumstances of the offense to show why a death sentence would be inappropriate.

The one exception has been evidence offered to demonstrate lingering doubt about the guilty verdict itself. In its 1988 decision, the Supreme Court held that a defendant did not have a constitutional right to have the judge instruct the jury that it should consider any "residual" doubt about guilt when deciding on a sentence.

But that decision, Franklin v. Lynaugh, did not address the more basic question of whether, aside from the eventual jury instructions, the defendant had the right to present such evidence to the jury in the first place. That question, which has confused the lower courts, is the issue the justices have now agreed to decide in Oregon v. Guzek, No. 04-928, the case they accepted on Monday.

The defendant, Randy Lee Guzek, was convicted in 1988 of murdering the aunt and uncle of his former girlfriend. He was sentenced to death, but the Oregon courts vacated his death sentence in 1990 and again in 1991, ordering new proceedings as the result of United States Supreme Court decisions in other death penalty cases. Each time, Mr. Guzek was re-sentenced to death.

In 2004, the Oregon Supreme Court once again overturned the death sentence, finding several errors. It ruled that in any subsequent hearing, Mr. Guzek should be permitted to present transcripts of statements from his mother and grandfather that were admitted during the guilt phase.

Taken together, the two statements provided an account of Mr. Guzek's whereabouts on the night of the murder that, if credited, made it highly unlikely that he had been at the murder scene. The state court's 3-to-2 decision held that Mr. Guzek had a right to present the evidence of his alibi under the Eighth Amendment, which prohibits cruel and unusual punishment.

The issue in the case, which will not be argued until next fall, might have some bearing on the forthcoming death penalty hearing for Zacarias Moussaoui, who pleaded guilty last week to taking part in the conspiracy that led to the Sept. 11, 2001, terrorist attacks. While pleading guilty to a capital offense, Mr. Moussaoui announced his intention to contest the death penalty. Judge Leonie M. Brinkema of Federal District Court, who has presided over the case, said Friday that access to high-level Qaeda detainees could provide mitigating evidence for Mr. Moussaoui and would be "highly relevant to the sentencing phase." Mr. Moussaoui has long claimed that these witnesses, to whom the government has denied him access, would exonerate him.

There were also these developments at the court on Monday.

Postal Negligence

The court agreed to resolve a dispute among the lower federal courts over the government's liability for negligent mail delivery. Under the Federal Tort Claims Act, the government is immune from liability for "any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." The question in this case, Dolan v. United States Postal Service, No. 04-848, is the meaning of "negligent transmission."

The plaintiff, Barbara Dolan, fell and injured her back when she tripped over packages that a letter carrier had left on the porch of her home. The Federal District Court in Philadelphia, in a decision affirmed by the United States Court of Appeals for the Third Circuit, dismissed her suit on the ground that "transmission" includes the actual delivery of the mail, which could thus not be the basis for a lawsuit. By contrast, the Second Circuit, in New York, has interpreted the phrase "negligent transmission" as limited to loss or damage to the mail while in transit.

P.O.W. Lawsuit

Without comment, the justices refused to hear an appeal brought on behalf of 17 American prisoners of war from the Persian Gulf war of 1991. Along with their families, the 17, who were tortured in Iraqi prisons, sued Iraq under a federal law that permits such suits against officials of governments that have been designated as state sponsors of terrorism.

In 2003, after Iraq failed to respond to the lawsuit, a federal judge in the District of Columbia, Richard W. Roberts, awarded the plaintiffs nearly $1 billion. The federal government opposed the judgment and the United States Court of Appeals here overturned it last June, dismissing the suit on the ground that the plaintiffs lacked a proper basis for invoking the law.

In their appeal, Acree v. Republic of Iraq, No. 04-820, the plaintiffs said the decision, "if left uncorrected by this court, will pose a serious and potentially insurmountable obstacle for future victims of terror." But the solicitor general's office said a large monetary judgment against Iraq, now viewed as "a state subject to our protection" rather than an enemy, would "hinder crucial foreign policy objectives." The government's brief added, "After the new Iraqi regime has had time to become firmly established, the president may choose to espouse petitioners' claims through diplomatic means."

SUPREME COURT ROUNDUP: Review Set for Evidence in Murder Trial's Penalty Phase, NYT, April 26, 2005, http://www.nytimes.com/2005/04/26/politics/26scotus.html