History > 2006 > USA > Supreme Court (I)

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The selection of Samuel A. Alito Jr.

drew opposition from abortion rights groups,

who argued that he might open the door

to major new restrictions on abortion.

Doug Mills/The New York Times        November 1, 2005

U.S. Bar Association Grants Alito High Rating

NYT

4.1.2006

http://www.nytimes.com/aponline/politics/AP-Alito.html - broken link

A Supreme Court Setback

for Whistle-Blowers

May 31, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, May 30 — The Supreme Court ruled on Tuesday that the Constitution does not protect public employees against retaliation by their supervisors for anything they say in the course of performing their assigned duties.

While the court's focus in the 5-to-4 decision was on disputes that remain within the workplace, the decision raised questions about the extent to which whistle-blowers who make their complaints public might now face a greater danger of retaliation.

Although several employee groups raised immediate alarms, Justice Anthony M. Kennedy's majority opinion in fact contained the counterintuitive implication that employees might fare better by speaking out as "citizens" and taking their complaints to the public rather than keeping them within the official chain of command.

The likely impact of the ruling was therefore far from clear. The court raised several questions that it did not answer, instead sending the case back to the lower federal courts in California, where it began as a suit by an assistant prosecutor in Los Angeles who claimed he was the victim of unconstitutional retaliation for complaints about a search warrant.

The National Whistleblower Center and other groups representing public employees issued statements deploring the decision and warning that it would deter employees from taking risks to expose waste and fraud.

But Daniel P. Westman, a lawyer with the firm of Morrison & Foerster who advises employers on whistle-blower issues, said in an interview that the decision did little more than affirm the status quo by "rejecting a very overreaching opinion" by a federal appeals court. He said "smart employers" would now be sure to encourage the use of internal complaint mechanisms to deter employees from taking their complaints public and thus enjoying the prospect of greater constitutional protection.

Justice Kennedy's opinion drew a formal distinction between two kinds of speech by public employees: statements they make "pursuant to their official duties" and those made as citizens contributing to "the civic discourse." The first category was not protected by the First Amendment's guarantee of free speech, Justice Kennedy said, while the second retained "the prospect of constitutional protection."

The dissenting justices warned that this distinction would often be unclear in practice and difficult for lower courts to apply.

"The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong," Justice John Paul Stevens said in a dissenting opinion.

The other dissenters were Justices David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg.

Chief Justice John G. Roberts Jr. joined the majority opinion, as did Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Justice Alito was not on the court when the case, Garcetti v. Ceballos, No. 04-473, was argued last October. The case had not been decided by the time Justice Sandra Day O'Connor retired and Justice Alito took his seat in January.

When the court ordered a second argument, held on March 21, the implication was that the eight remaining justices who had heard the case the first time were deadlocked and that Justice Alito would break the tie. The reality may have been more complex.

Justice Breyer made it clear in his separate dissenting opinion that he was satisfied with neither Justice Kennedy's majority opinion nor Justice Souter's principal opinion for the other three dissenters, and his vote may have been uncertain until late in the process. Justice Breyer would have emphasized the fact that as a lawyer, the plaintiff, Richard Ceballos, had special ethical obligations to speak up if he found problems with a pending prosecution and so deserved special constitutional protections.

In his lawsuit, Mr. Ceballos claimed that he was given an unwelcome transfer and was denied a promotion after taking several steps to complain about the apparent unreliability of an affidavit that had provided the basis for a search warrant in a case the office was prosecuting. He told his supervisors of his concerns, and wrote a memorandum recommending dismissal of the case. There was a heated meeting, after which his concerns were rejected.

Mr. Ceballos later testified for the defense at a court hearing, and spoke about the issue at a meeting of the Mexican American Bar Association.

The Supreme Court's focus, however, was entirely on the initial internal memorandum because the United States Court of Appeals for the Ninth Circuit, in ruling for Mr. Ceballos, found that the document was constitutionally protected speech and did not then go on to consider the constitutional status of his other actions.

In overturning the Ninth Circuit's judgment, Justice Kennedy's opinion said that in writing the memorandum, Mr. Ceballos was simply carrying out the normal duties of his job, which included advising his supervisors on how to proceed with pending cases.

"We hold that when public employees make statements pursuant to their official duties," Justice Kennedy said, "the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

To hold otherwise, he continued, would be to give employees "a right to perform their jobs however they see fit," as a matter of constitutional law. It would "commit state and federal courts to a new, permanent and intrusive role" of overseeing internal communications in government workplaces, the justice concluded.

The lower courts will now consider whether Mr. Ceballos was performing his normal duties when he testified at the hearing and spoke to the bar association. Justice Souter, in his dissenting opinion, said that these were not obviously part of the prosecutor's normal duties and that they needed to be analyzed independently.

If they are found to be "citizen" speech, under the dichotomy the court established, these comments will be analyzed under a 1968 Supreme Court precedent that set up a balancing test for whether a public employee's speech is constitutionally protected. Courts weigh the employee's interest in commenting on matters of public concern against the employer's interests as a manager.

A Supreme Court Setback for Whistle-Blowers, NYT, 31.5.2006, http://www.nytimes.com/2006/05/31/washington/31scotus.html

Supreme Court Roundup

Justices Back

Police Intervention Without a Warrant

May 23, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, May 22 — The Supreme Court ruled unanimously on Monday that the police do not need a warrant to enter a private home to break up a fight in which injuries have occurred or are foreseeable.

The decision, which overturned a ruling by the Utah Supreme Court, was an example of something that the justices often declare to be unworthy of their time and attention, but that they engage in regularly nonetheless: the simple correction of a lower court's error.

"We think the officers' entry here was plainly reasonable under the circumstances," Chief Justice John G. Roberts Jr. said in his opinion for the court after describing the facts of the case. These included sounds of "thumping and crashing" and cries of "stop, stop" and "get off me" filling the night air as four Brigham City police officers approached a home where neighbors had called to complain about a loud party.

Peering through a rear window, the officers saw one person spitting blood after being punched in the face by another. According to the Utah Supreme Court, the observed injury was not serious enough to justify entry without a warrant. But "the role of a peace officer includes preventing violence and restoring order," Chief Justice Roberts said, adding, "An officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided."

The adult occupants of the house were charged with offenses including intoxication and disorderly conduct, but a trial has not yet taken place. The state appealed after the Utah courts refused to permit use of the evidence the police had obtained after entering the house.

At least as interesting as the chief justice's opinion was a concurring opinion by Justice John Paul Stevens, who began by declaring, "This is an odd flyspeck of a case."

Justice Stevens said that because it was clear that the Utah Constitution, in the view of the State Supreme Court, gave more protection against entry without a warrant than did the federal Constitution, the state court would now probably decide such cases under the State Constitution. That would mean that as a practical matter, this decision would have accomplished nothing, at least in Utah.

"I remain persuaded," Justice Stevens said, that the court should not have agreed to hear the case. He added that his vote to deny the state's petition was correct.

The case was Brigham City v. Stuart, No. 05-502.

Other actions by the court on Monday included these:

Subway Murder Conviction

Without comment, the justices turned down an appeal from a ruling by the New York State Court of Appeals that overturned the murder conviction of Andrew Goldstein, whom a jury found guilty of pushing a woman to her death in front of a subway train in 1999. The appeal, New York v. Goldstein, No. 05-1193, was filed by Robert M. Morgenthau, the Manhattan district attorney.

Mr. Goldstein's mental health was a major issue in his trial. The appeals court ruled that the prosecution's psychiatric expert should not have been permitted to testify about what other people who had encountered Mr. Goldstein had told her. These people did not appear at the trial and so were not available for cross-examination.

The appeals court based its December 2005 decision on a recent Supreme Court decision, Crawford v. Washington, that made clear that under the Sixth Amendment, the defense must be given the right to cross-examine the state's witnesses in nearly all cases.

Barbara Thompson, a spokeswoman for Mr. Morgenthau, said Monday that Mr. Goldstein would face a new trial. It will be his third; his first trial, in 1999, ended in a hung jury. He was convicted at a second trial in 2000 and sentenced to a prison term of 25 years to life; this conviction was later thrown out by the New York appeals court. [Page B1.]

Lethal Injection

The court turned down a challenge to Tennessee's method of lethal injection, filed by an inmate on the state's death row. The inmate, Abu-Ali Abdur'Rahman, convicted of a 1986 murder, argued that one of three chemicals the state uses "has the clear potential to inflict great pain," although it is not needed to cause death.

The chemical, pancuronium bromide, paralyzes the muscles, giving the inmate a peaceful appearance, but can cause severe pain if not accompanied by adequate, sufficiently long-lasting anesthesia. Most states that carry out executions by lethal injection use the same chemical. At the same time, many, including Tennessee, forbid its use in veterinary practice for euthanizing animals.

The Tennessee Supreme Court rejected the defense's argument that the state's lethal injection protocol violated the Eighth Amendment's prohibition against cruel and unusual punishment.

Last month, the justices heard arguments in a lethal injection case from Florida, Hill v. McDonough, No. 05-8794. That case raised the procedural issue of whether a challenge to lethal injection could be brought by an inmate who had already exhausted all ordinary appeals.

The court's action on Monday in the Tennessee case, Abdur'Rahman v. Bredesen, No. 05-1036, indicates that the justices see the Florida case as purely procedural, and that they are content to leave other issues concerning lethal injection to the states. Federal courts around the country have wrestled with similar cases, with inconsistent and confusing results. Some courts have granted stays, while others have permitted executions to proceed.

In Ohio this month, it took officials nearly 90 minutes to execute Joseph Clark, who at one point lifted his head off the gurney to say, "It's not working," and was later heard moaning as the execution continued.

    Justices Back Police Intervention Without a Warrant, NYT, 23.5.2006, http://www.nytimes.com/2006/05/23/washington/23scotus.html

Chief Justice Says

His Goal Is More Consensus on Court

May 22, 2006
The New York Times
By THE ASSOCIATED PRESS

WASHINGTON, May 21 — Chief Justice John G. Roberts Jr. said Sunday that he was seeking greater consensus on the Supreme Court, adding that more consensus would be likely if controversial issues could be decided on the "narrowest possible grounds."

In a 15-minute address to Georgetown University law graduates, Chief Justice Roberts, 51, sketched a vision for leading a court sharply divided on issues like abortion, the death penalty and gay rights.

He said the nation would benefit if the justices could avoid 5-to-4 decisions in cases with sweeping impact, noting that many of the court's most controversial cases, including presidential wartime powers and political boundaries in Texas, would be decided in the final six weeks of the current term.

"If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case," Chief Justice Roberts said. "Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds."

His comments come as the court is under criticism by some members of Congress who say the justices have overreached in decisions that struck down the death penalty for juveniles and allowed cities to use eminent domain powers to take homes for private economic development.

In recent weeks Justice Ruth Bader Ginsberg, appointed by President Bill Clinton, and Justice Antonin Scalia, appointed by President Ronald Reagan, have pushed back, suggesting in speeches that Congress should mind its own business rather than seek to tell the court what to do.

Court observers have said that in his eight months on the court, Chief Justice Roberts has been most striking for fostering consensus.

On Sunday, Chief Justice Roberts lightheartedly made reference to the public scrutiny of the court. Much of the recent attention came after President Bush nominated him to be chief justice last summer and selected Justice Samuel A. Alito Jr., also a conservative, to succeed Justice Sandra Day O'Connor, often the court's swing vote.

In his confirmation process, both conservative and liberal advocacy groups scoured Chief Justice Roberts's judicial record and background for evidence of his political leanings.

"Look at the graduates around you," he said with a smile. "Twenty-some years from now, these are the people the press is going to track down to find something embarrassing about you."

He added, "Today is the day to decide among yourselves, what happens at Georgetown stays at Georgetown."

    Chief Justice Says His Goal Is More Consensus on Court, NYT, 22.5.2006, http://www.nytimes.com/2006/05/22/washington/22justice.html

Justices Uphold State Rules

in Decision on Dam Licenses

May 16, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, May 15 — The Supreme Court ruled Monday that operators of hydroelectric dams must meet a state's water quality requirements in order to qualify for a federal license. The unanimous decision was the court's first ruling in an environmental case under Chief Justice John G. Roberts Jr., and it came as a relief to environmental advocates.

Justice David H. Souter's opinion for the court upheld a ruling by the Supreme Judicial Court of Maine. The justices rejected the argument of a company that owns five dams on the Presumpscot River, which runs through Portland, that it did not need state approval because its operations did not add pollutants to the water that passed over its dams and through its turbines.

The company, S. D. Warren Company, a subsidiary of South African Pulp and Paper Industries Ltd., uses the power it generates to run a paper mill in Westbrook, Me. The dispute arose when the company prepared to renew its federal licenses.

A federal law, the Clean Water Act, requires an applicant for a federal license or license renewal to first obtain state certification if its activities "may result in any discharge into the navigable waters." Congress did not define the word "discharge," and the company argued that the word should be understood to refer to the addition of pollutants. Since it was not adding anything to the water, the company argued, Section 401 of the Clean Water Act, requiring state certification, did not apply to its activities.

To the contrary, Justice Souter said, there was no reason not to give the word "discharge" its plain, everyday meaning: "flowing or issuing out." The flow of water over a dam was therefore a "discharge," he said.

The decision applies to about 2,500 hydroelectric dams on 500 rivers in 45 states.

Justice Souter said that the Clean Water Act was concerned with water quality and that alteration in water quality "is a risk inherent in limiting river flow and releasing water through turbines." He noted that Maine's environmental agency had concluded that S. D. Warren's dams had caused "long stretches" of the riverbed to become "essentially dry" and had blocked the passage of eels and spawning fish.

The state agency made its approval contingent on S. D. Warren's maintaining a minimum water flow over its dams, a conclusion that the company challenged unsuccessfully in state court.

In his opinion on Monday, S. D. Warren Company v. Maine Board of Environmental Protection, No. 04-1527, Justice Souter said that "changes in the river like these fall within a state's legitimate legislative business, and the Clean Water Act provides for a system that respects the states' concerns."

Environmental groups had been alarmed by the court's decision last fall to hear the company's appeal in the absence of the usual reasons for a grant of Supreme Court review, such as a conflict among the lower courts on the interpretation of a federal law. Every court to consider the meaning of "discharge" had reached the same conclusion. The Bush administration had argued in the case in support of Maine.

Environmental advocates were also pleasantly surprised by another development at the court on Monday in a case that found them opposing the administration. The justices rejected the Bush administration's advice and agreed to hear an appeal by a coalition of environmental groups of a lower court's interpretation of another important issue under another major statute, the Clean Air Act.

The question in the new case, Environmental Defense v. Duke Energy Corporation, No. 05-848, is the validity of the method by which the Environmental Protection Agency measures emissions from power plants and other industrial facilities that are subject to the agency's "new source review" program for installing new pollution controls.

The dispute is over whether emissions are to be measured hourly or yearly. The hourly measure, favored by industry, does not measure an overall increase in emissions if plants operate for a greater number of hours. Consequently, the E.P.A. had long insisted on the yearly measurement.

During the Clinton administration, the agency brought a series of enforcement actions, with the resulting litigation lingering into the Bush years. In this case, the United States Court of Appeals for the Fourth Circuit ruled late last year that the agency had to use the hourly measure.

The administration did not appeal to the Supreme Court, instead announcing that it would acquiesce in the decision and would issue a new set of rules. Citing the new rulemaking procedure, it urged the justices to turn down the appeal filed by the environmental groups and supported by 14 states, including New York, New Jersey and Connecticut.

The justices' decision to hear the case now requires the administration to decide whether to defend the agency's previous position or formally abandon it. The case contains the additional question of whether the Fourth Circuit, which sits in Richmond, Va., had jurisdiction to address the agency rules in the first place. Ordinarily, challenges to rules issued by the Environmental Protection Agency must be filed exclusively in the United States Court of Appeals for the District of Columbia Circuit. A week after the Fourth Circuit ruling, the District of Columbia Circuit addressed the same issue in a separate case and reached the opposite conclusion.

In another development on Monday, the court turned down appeals filed by both the federal government and Cayuga Indian Nation of New York of a ruling that overturned a $248 million judgment on behalf of the Indians against New York State.

The judgment, awarded to the Cayugas in 1992 by Judge Neal P. McCurn of Federal District Court in Syracuse, was to compensate the Indians for purchases of their tribal land that New York made in the late 1700's in violation of federal law. The federal government entered the case on the Indians' behalf.

Last year, however, the United States Court of Appeals for the Second Circuit, in Manhattan, dismissed the lawsuit on the ground that the Indians had waited too long to bring it.

Both the government, in United States v. Pataki, No. 05-978, and the tribe, in Cayuga Indian Nation v. Pataki, No. 05-982, filed Supreme Court appeals, arguing that the Second Circuit had misapplied a doctrine of the common law known as laches, under which legal claims that have been allowed to lapse for a long period may not be revived.

Gay Rights Case Is Declined

WASHINGTON, May 15 (AP) — The Supreme Court, without comment, declined Monday to review a ruling allowing a lesbian to seek parental rights to a child she helped raise with her longtime partner.

The justices have never dealt with the rights of gay people in child custody disputes.

The court had been asked to review a ruling of Washington State's highest court that said the woman, Sue Ellen Carvin, could pursue ties to the girl as a "de facto parent."

    Justices Uphold State Rules in Decision on Dam Licenses, NYT, 16.5.2006, http://www.nytimes.com/2006/05/16/washington/16scotus.html

Justices Order Rethinking of eBay Case

May 16, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, May 15 — The long-running patent dispute between eBay and MercExchange entered a new and, quite likely, still not final phase on Monday when the Supreme Court sent the case back to the lower federal courts.

The justices told the lower courts to reconsider whether eBay — having been found by a jury to have infringed two MercExchange patents on the method behind the "Buy It Now" feature of its online auction business — should be barred from continuing to use the method.

The decision left the resolution of this dispute uncertain, given the court's insistence that judges must engage in a case-by-case examination of requests for patent injunctions rather than apply one-size-fits-all rules.

In a unanimous opinion by Justice Clarence Thomas, the court said that neither of the lower courts that handled MercExchange's request for an injunction had approached it correctly, despite having reached opposite conclusions.

The Federal District Court in Norfolk, Va., denied MercExchange's request for an injunction on the ground that MercExchange had not itself engaged in "commercial activity" to market its patents. MercExchange, a small company in Great Falls, Va., tried but failed in the late 1990's to raise the capital necessary to market its invention.

After failing to reach agreement with eBay on a license fee, MercExchange filed suit in 2001. It won damages of $25 million but wanted an injunction as well.

The denial of the injunction was wrong, Justice Thomas said, because the court took too categorical an approach in relying on MercExchange's failure to put its patents to practical use. "Some patent holders, such as university researchers or self-made inventors, might reasonably prefer to license their patents, rather than undertake efforts to secure the financing necessary to bring their works to market themselves," Justice Thomas said.

But, he continued, the United States Court of Appeals for the Federal Circuit, a specialized court here that handles patent appeals, was also in error for the analysis it applied when it overturned the district court's denial of the injunction. The appeals court invoked what it called the "general rule" that "a permanent injunction will issue once infringement and validity have been adjudged."

Justice Thomas said that in resorting to the general rule, "just as the district court erred in its categorical denial of injunctive relief, the court of appeals erred in its categorical grant of such relief."

In patent cases no less than in other kinds of cases, he said, the party seeking an injunction must meet a four-factor test. It must show that it has "suffered an irreparable injury"; that other remedies like monetary damages are inadequate; that an injunction is warranted; and that the public interest "would not be disserved by a permanent injunction."

While the opinion, eBay v. MercExchange, No. 05-130, emphasized that "we take no position" on whether an injunction should eventually be issued, it was clear from a pair of concurring opinions that different justices had different inclinations. In fact, the surface unanimity of the decision could not hide a substantial dispute involving two groups.

One group, composed of Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Ruth Bader Ginsburg, noted in a concurring opinion by the chief justice that "from at least the early 19th century, courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases." Consequently, courts approaching this issue were not "writing on an entirely clean slate," Chief Justice Roberts said.

The thrust of this concurring opinion was that denial of an injunction should be an unusual, even rare outcome of a case like MercExchange's.

But the other group of justices said that history was not necessarily a reliable guide in the new business climate of today. "In cases now arising, trial courts should bear in mind that in many instances the nature of the patent being enforced and the economic function of the patent holder present considerations quite unlike earlier cases," this group, composed of Justices Anthony M. Kennedy, John Paul Stevens, David H. Souter, and Stephen G. Breyer, said in an opinion by Justice Kennedy.

Justice Kennedy's opinion continued: "An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees. For these firms, an injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent."

Beyond the ruling, there is another source of uncertainty about the case. The Patent and Trademark Office has embarked on a reconsideration of the validity of MercExchange's patents, a process that could take years and produce more litigation.

In a decision in another closely watched case on Monday, the court held that the Ohio taxpayers who had challenged the validity of a tax credit intended to stimulate capital investment by businesses in the state lacked standing to pursue the case in federal court.

The unanimous ruling in DaimlerChrysler Corporation v. Cuno, No. 04-1704, overturned a decision by the federal appeals court in Cincinnati that found the investment tax credit to violate the Constitution by hindering "free trade among the states."

Chief Justice Roberts wrote the opinion, invoking a longstanding doctrine that taxpayers generally may not go to federal court with policy disputes in which they cannot demonstrate a concrete stake.

The case was an appeal by DaimlerChrysler, which received substantial tax breaks under the program for expanding a Jeep assembly plant in a depressed area of Toledo.

Prof. Peter Enrich of Northeastern University School of Law, a lawyer for the plaintiffs, said the case against the tax credits would be refiled in state court, where "rules for citizen standing are far more permissive than those in the federal courts."

    Justices Order Rethinking of eBay Case, NYT, 16.5.2006, http://www.nytimes.com/2006/05/16/technology/16bizcourt.html

Five justices to watch

as the Roberts court evolves

Posted 5/11/2006 8:45 PM ET
USA Today
By Joan Biskupic

The death of former chief justice William Rehnquist and the retirement of former justice Sandra Day O'Connor make the current term the first in 34 years in which the Supreme Court gained two new members in a single term. But the changes are more momentous than in 1972, when Rehnquist and Lewis Powell joined the court, for two reasons: They involve the important post of chief justice and the replacement of O'Connor, the court's most influential member.

For more than a decade, the moderate O'Connor was able to steer decisions, sometimes toward the court's more liberal members — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — and sometimes toward its conservatives: Rehnquist, Antonin Scalia and Clarence Thomas. Justice Anthony Kennedy often was in the middle with O'Connor, but more to the conservative side.

President Bush cited the conservative credentials of new Chief Justice John Roberts and Justice Samuel Alito when he appointed them, but it isn't clear how they will affect the nation's law. As Roberts and Alito begin to define their roles, other justices are redefining theirs. Five to watch:

1. Anthony M. Kennedy: From the middle, an emerging power broker

Kennedy, 69, an appointee of President Reagan, is positioned to be the lone justice in the middle between four liberals and four conservatives — and the high court's voice on divisive issues.

In January, Kennedy wrote the court's opinion that upheld Oregon's law on physician-assisted suicide in the face of the Bush administration's attempt to void it.

On April 3, Kennedy, joined by the conservative Roberts and the liberal Stevens, took the lead in explaining why they had denied an appeal by terror suspect Jose Padilla.

Kennedy is among five justices on the current court — and the only one not in the liberal wing — to have expressed support for abortion rights, making him perhaps the most important vote on the issue.

Early in his tenure he voted against such rights, but he surprisingly reversed course in a 1992 case and voted to uphold Roe v. Wade, the 1973 ruling that made abortion legal nationwide.

However, in a 2000 dispute over a procedure that its critics call "partial-birth" abortion, Kennedy sided with the court's conservatives in a dissenting opinion that said states should be able to outlaw the "abhorrent" procedure.

A significant test of Kennedy's evolving views will come this fall, when the court takes up a dispute over a federal ban on partial-birth abortion.

Harvard University law professor Richard Fallon says that for years, he taught his constitutional law classes with an eye toward the writings of O'Connor, the author of the court's standards on abortion rights, affirmative action, separation of church and state and several other contentious issues.

"Now, it's going to be Justice Kennedy right in the center," Fallon says.

2. John Roberts: New chief shows he'll likely be a force on the bench

In seven months, the new chief justice, 51, already is making a mark. On the bench he has become known for vigorously asking pointed questions — a stark contrast to the plodding style of his predecessor, Rehnquist.

Roberts has written few opinions, but the charm and preparedness that made him a star litigator before he became a judge have analysts predicting he could be a conservative powerhouse — more effective than Rehnquist and, before him, former chief justice Warren Burger.

"These justices are used to being persuaded by him," says Notre Dame University law professor Richard Garnett, referring to Roberts' having argued 39 cases before the court as a lawyer for the government and in private practice.

"He comes on as the 'rock star' Supreme Court litigator," Garnett says. "And because he is a great litigator, he knows how to find the heart of the issue and focus the attention of others on it."

Georgetown University law professor Peter Rubin says there's a chance that Roberts' conservative views could prompt a stronger show of force from the court's other liberals — and further enhance the power of the vacillating Kennedy.

Along with Scalia and Thomas, Roberts has cast dissenting votes against Oregon's assisted-suicide law and in favor of law enforcement in a Georgia dispute over a warrantless search of a home by police. In March, Roberts led a unanimous ruling that said the U.S. government can withhold funds from universities that deny military recruiters access in protest of the Pentagon's ban on gays and lesbians.

"Nothing he has done so far should disappoint conservatives," Fallon says.

3. David H. Souter: Shy justice begins to show an edge

Souter, 66, an appointee of the first President Bush and one of the court's liberals, has long been known for his reserved manner. He has shed that persona in recent court sessions and become more hard-hitting.

During oral arguments in March in a case that tests the administration's plan to hold military tribunals for foreign terror suspects, Souter angrily suggested that the White House was trying to prevent the nation's judges from ensuring that such suspects are not wrongly jailed.

Earlier, Souter wrote a biting opinion for a liberal-led majority that declared a police search unconstitutional. In a break from his usual collegiality, Souter derided dissenting justices for opinions that he said gave short shrift to privacy rights.

Souter usually does not draw attention to himself. Off the bench, he is shy and rarely gives public speeches or attends social functions in Washington.

"There is some evidence that Souter is going to become a stronger voice than before," says Harvard University law professor David Barron. He suggests that Roberts' potential as a conservative force of nature appears to be revving up the court's liberals, particularly Souter and Stevens.

4. Samuel Alito: New justice shows his conservative streak

Alito, 56, joined the court as O'Connor's replacement on Jan. 31. He has a reticent demeanor and has written only one opinion. It was a straightforward, unanimous decision in a South Carolina criminal law dispute; all of the other justices signed his opinion. A key question from his Senate confirmation hearings — whether he, unlike O'Connor, will vote against abortion rights — won't be answered until at least the 2006-2007 term.

Alito's questions from the bench often have been in sync with those of the conservative Scalia — perhaps reinforcing the "Scalito" nickname that Alito drew as a conservative lower court judge. During a court session in March, a lawyer arguing before the justices referred to Alito as "Scalia" before quickly correcting himself.

5: John Paul Stevens: Liberal justice remains formidable

At 86, the Ford appointee who is the most senior member of the court's liberal wing has shown few signs of slowing down, much less retiring. This term, Stevens appears to be vying with the new chief justice over the court's direction, Barron says.

One sign of that, Barron says, came when Stevens and Roberts joined Kennedy's statement in the Padilla case. "Neither Chief Justice Roberts nor Justice Stevens was inclined to leave Kennedy out there with an opinion that only one of the competing leaders signed on to," Barron says. "There's a strong interest among them, especially Chief Justice Roberts and Justice Stevens, in commanding the court for their vision of the Constitution. The really open question is: Now that Justice O'Connor's voice is gone, whose voice will the court become?"

    Five justices to watch as the Roberts court evolves, UT, 11.5.2006, http://www.usatoday.com/news/washington/judicial/supremecourtjustices/2006-05-11-five-to-watch_x.htm

Supreme Court Memo

In the Roberts Court,

More Room for Argument

May 3, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, May 2 — This is the week that the Supreme Court, done with its regular argument sessions, enters the stretch run.

While it is too soon for substantive appraisals of the first year of the Roberts court, it is not too soon for stylistic observations about what is clearly, in the view of lawyers who have appeared there this term, a different court.

"The tone has changed," Prof. Richard J. Lazarus of the Georgetown University Law Center, where he runs the Supreme Court Institute and teaches a course on Supreme Court advocacy, said on Tuesday.

In common with every other Supreme Court specialist contacted for this article, Professor Lazarus listed several obvious changes. "They're not stepping on each other," he said of the justices. "They take longer before someone asks the first question. They give the lawyers more time to answer."

Beth S. Brinkmann, like Professor Lazarus a veteran of the solicitor general's office, who now represents private clients before the court, said of the new courtroom experience: "You sit there and think, 'Whoa, isn't anyone going to ask a question?' "

Carter G. Phillips, one of the most active current practitioners, said the change had been so abrupt as to be a trap for an unwary counsel. "You have to be ready now to make some kind of affirmative presentation" in the opening minutes of an argument, he said.

When former Justice Sandra Day O'Connor was on the court, he recalled, she asked the first question so quickly and so predictably that there was little point in preparing an elegant opening argument. "Now you might get three or four minutes" without interruption, he said.

The question, of course, is how to explain the change. Even assuming that Justice O'Connor's departure in January accounts for quieter opening moments, a different dynamic seems to prevail throughout entire arguments. With justices sitting back and allowing colleagues to ask follow-up questions, and with lawyers given an actual chance to answer, there is a new coherence and civility to the sessions.

Has Chief Justice John G. Roberts Jr., himself the veteran of 39 Supreme Court arguments as a lawyer, shared with his colleagues the perspective from the other side of the bench, or maybe even laid down some new rules?

The latter theory is unlikely; the court's ethos calls for signaling rather than rule-making. To the extent that the new chief justice is leading by example — and there is no doubt that he is in charge of the courtroom — he is offering a model of how to ask questions that are tightly phrased, penetrating and often the last thing a lawyer wants to hear.

"Maybe it's because he has so much experience arguing before the court, but he seems to be able to zero in on the weakest point in a case," said Prof. Pamela S. Karlan of Stanford Law School, where she runs the Supreme Court Litigation Clinic.

Professor Karlan argued one case this term and sat in on others, noticing to her surprise that justices who inadvertently stepped on another justice's lines held back to allow the colleague to finish, rather than plowing ahead.

Some of the chief justice's questions are deceptively simple. "What is a tributary?" he asked the lawyers in a pair of Clean Water Act cases, seeking a definition that helped to frame the basis of federal jurisdiction. At other times he spins hypothetical questions, difficult to convey out of context; suffice it to say that the traps in these questions are obvious, but the way to avoid them is not.

The chief justice is a more active questioner than his predecessor, Chief Justice William H. Rehnquist, and his style is quite different.

"Rehnquist told you what he thought," Mr. Phillips said. "He wasn't struggling to figure out the case. Roberts doesn't tip his hand as much. He asks hard questions of both sides without communicating his own preference."

As a result, Mr. Phillips said, the arguments have become less predictive of the eventual decisions. He said he had assumed that he won the chief justice's vote after arguing a case in January on the adequacy of the notice that the State of Arkansas gave to a man whose house it sold for unpaid taxes. The two letters the state sent were enough, Mr. Phillips argued, but Chief Justice Roberts disagreed and last week wrote the court's opinion holding that the state had violated the homeowner's constitutional right to due process.

In another distinction between the Roberts and Rehnquist styles, Chief Justice Roberts is reliably said to be presiding over the justices' private after-argument conferences with a lighter hand, not watching the clock as closely and permitting more conversation.

That might account for the changed tone of the arguments, Ms. Brinkmann speculated. "If you know you'll be able to make your point in conference, you don't have to make it on the bench," she said.

The court has scheduled one final argument for the term on May 18. It is a reargument of a police search case, Hudson v. Michigan, that was argued shortly before Justice Samuel A. Alito Jr. joined the court in January. It is safe to assume that without his participation, the court is split 4 to 4.

Despite the disruptions of the term, the court has stayed on track, both in the numbers of opinions issued and new cases accepted. Thirty-nine opinions have been issued so far, typical at this point, with 35 to go. Will most of these come in the familiar helter-skelter June rush, or does Chief Justice Roberts have a trick up his sleeve to make the end of the term as orderly as the rest of it?

Now that would really be something different.

    In the Roberts Court, More Room for Argument, NYT, 3.5.2006, http://www.nytimes.com/2006/05/03/washington/03memo.html

Former Playmate

Wins Procedural Round

in Fight Over Estate

May 2, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, May 1 — The Supreme Court on Monday gave the onetime Playboy Playmate Anna Nicole Smith a new day in federal court to try to prove that her late husband, 63 years her senior, intended to leave her a substantial share of his billion-dollar estate. The two had been married 14 months at the time of his death, at age 90.

In an opinion by Justice Ruth Bader Ginsburg, the court ruled unanimously that the dispute between Ms. Smith and her late husband's son E. Pierce Marshall was properly one for the federal courts.

The Supreme Court addressed itself only to the question of jurisdiction, leaving many issues open for consideration in the lower federal courts. Unless the two sides settle, which seems unlikely after 10 years of bitter litigation, the outcome ensured that the case would go on, perhaps for years longer.

That was undoubtedly good news to the many people who, while perhaps lacking deep interest in the "probate exception to federal jurisdiction" that is the actual issue in the case, appeared fascinated by Ms. Smith's trajectory from a Houston strip club to the Supreme Court. While calm prevailed in court when the case was argued in February, several people were knocked down in the scrum of photographers outside when Ms. Smith and her entourage passed by.

Although purely procedural, the decision in Marshall v. Marshall, No. 04-1544, was a victory for Ms. Smith, whose legal name is Vickie Lynn Marshall. It overturned a ruling by the United States Court of Appeals for the Ninth Circuit, in San Francisco, which threw out an $88 million judgment in Ms. Smith's favor issued by the Federal District Court in Los Angeles.

The appeals court ruled that because the dispute was ultimately related to the disposition of an estate, the federal courts lacked jurisdiction over it under a longstanding judicial doctrine known as the probate exception to federal jurisdiction. Under this ruling, the case belonged in the exclusive jurisdiction of the Texas Probate Court, where E. Pierce Marshall prevailed three years ago in his effort to prove that his father, J. Howard Marshall II, who died in 1995, had left Ms. Smith nothing beyond the gifts he gave her during his lifetime.

In her opinion on Monday, Justice Ginsburg said that to come within the probate exception, and therefore to fall outside the federal courts' jurisdiction, a dispute had to directly involve the probate or annulment of a will, the administration of an estate or the disposition of property in a state probate court's custody.

Because the dispute ranged far beyond those narrow categories, Justice Ginsburg said, their case fell "far outside" the exception and the Ninth Circuit had been wrong to interpret the probate exception as expansively as it did.

The federal government had entered the case on Ms. Smith's behalf to argue to the justices that the probate exception should be applied narrowly, if at all. While, on the surface, the government's intervention may have seemed improbable, Solicitor General Paul D. Clement explained in his brief that the government often went to federal court to assert tax-related claims against an estate and needed to preserve its ability to do so.

The case began in federal court as a bankruptcy filing by Ms. Smith. In the course of the bankruptcy proceedings, she claimed that E. Pierce Marshall had wrongfully interfered with her right to share in her husband's estate. The bankruptcy court awarded her nearly $500 million, which the district court reduced substantially.

In a statement issued from Dallas, Mr. Marshall said he would continue to fight Ms. Smith's "false claims and libelous accusations" and would argue to the Ninth Circuit that the district court's judgment in her favor should be overturned.

Ms. Smith's lawyer, Kent Richland, said in a statement, "We are confident that the Ninth Circuit will have no problem in ruling in our favor on the issues that remain."

    Former Playmate Wins Procedural Round in Fight Over Estate, NYT, 2.5.2006, http://www.nytimes.com/2006/05/02/washington/02smith.html

In Death Row Case,

Justices Order Retrial Over Evidence

May 2, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, May 1 — With the first opinion by Justice Samuel A. Alito Jr., the Supreme Court ordered a new trial on Monday for an inmate on South Carolina's death row because the state courts improperly excluded evidence showing that another man might have committed the crime. The decision was unanimous.

Justice Alito said the rule of evidence applied by the South Carolina courts was irrational and arbitrary and served to deprive the defendant, Bobbie Lee Holmes, of a "meaningful opportunity to present a complete defense."

The rule in question, which is used by a small minority of states, says that when the state has presented strong forensic evidence of the defendant's guilt, like DNA analysis or a fingerprint, the defense can be prevented from offering the jury contradictory evidence that points to the guilt of another person.

Justice Alito noted that the South Carolina courts applied the rule even when the defense evidence, "if viewed independently, would have great probative value," as it might have had in the case at hand.

Justice Alito, the newest member of the court and a former federal prosecutor, said that "the true strength of the prosecution's proof cannot be assessed without considering challenges to the reliability of the prosecution's evidence."

He added, "The point is that by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt."

The South Carolina rule was arbitrary and irrational in failing to heed this point, he said.

Although the unanimous 11-page opinion made the conclusion seem rather obvious, that was not necessarily how the case appeared as it reached the court. A coalition of 18 states, led by Attorney General Phill Kline of Kansas, filed a brief on South Carolina's behalf to argue that the issue was one of federalism, urging the court to grant the states "substantial latitude and respect" for their various approaches to their criminal justice systems.

Steffen N. Johnson, the lawyer for the state coalition, told the justices when the case was argued on Feb. 22 that nine states had similar rules.

On the defendant's side, the case, Holmes v. South Carolina, No. 04-1327, drew interest from the National Association of Criminal Defense Lawyers and from a group of 40 professors of evidence law, who told the court in their brief that the South Carolina rule was "a judicial usurpation of the jury's constitutional authority to decide guilt or innocence in criminal prosecutions." The professors' brief said "the fundamental issue in this case is the right to trial by jury."

The court has in recent years been paying renewed attention to the Sixth Amendment right to trial by jury, overturning, for example, sentencing systems that allow judges to make the central factual findings that in the court's view should be left to juries.

In his opinion on Monday, however, Justice Alito did not analyze the case as presenting a question under the Sixth Amendment or any other specific constitutional provision. His emphasis on what he called the irrationality and illogic of the South Carolina rule brought the opinion closer to a generalized due process analysis.

No matter what route the court took, its opinion was greeted with approval by defense lawyers. Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University, which filed a brief for Mr. Holmes, said the decision was "a strong signal that the Supreme Court is taking the right of defendants to prove their innocence very seriously and is taking a critical look at forensic evidence."

Mr. Scheck said that while DNA evidence had led to many exonerations of criminal defendants, it was "still subject to erroneous interpretation or application, and the defense has a right to challenge that in court."

In this case, Mr. Holmes was convicted of murdering an 86-year-old woman, Mary Stewart, who was robbed, beaten and raped by someone who entered her home. Mr. Holmes was connected to the scene through a palm print, fiber analysis and DNA evidence. He argued that the forensic evidence was unreliable because it had been contaminated and that the police were trying to frame him.

At a pretrial hearing, his lawyers presented witnesses to support his argument that another man was Ms. Stewart's attacker. But the trial court refused, under the South Carolina rule, to allow this evidence to be introduced at trial.

Justice Alito said that while states were free to exclude defense evidence that "has only a very weak logical connection to the central issues," the type of evidence at issue in this case did not come under that description.

"Just because the prosecution's evidence, if credited, would provide strong support for a guilty verdict," he said, "it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case."

In other action on Monday, the court granted review in a death penalty case from California. The case, Ornaski v. Belmontes, No. 05-493, filed by Bill Lockyer, the state attorney general, is an appeal from a ruling by the United States Court of Appeals for the Ninth Circuit that found inadequate a jury instruction on how to consider mitigating evidence about a defendant's background and character.

    In Death Row Case, Justices Order Retrial Over Evidence, NYT, 2.5.2006, http://www.nytimes.com/2006/05/02/washington/02scotus.html

Supreme Court Debates

Lethal Injection Method

April 26, 2006
By THE ASSOCIATED PRESS
Filed at 11:56 a.m. ET
The New York Times

WASHINGTON (AP) -- Some Supreme Court justices had tough questions for a Florida lawyer about whether the state's lethal injection method causes excruciating pain for death row inmates.

Justices were taking up the latest capital punishment debate that focuses on the trio of drugs used in Florida and most other states.

''Your procedure would be prohibited if applied to dogs and cats,'' Justice John Paul Stevens told Florida Assistant Deputy Attorney General Carolyn Snurkowski.

Justice Stephen Breyer said that a medical journal study found that inmates can suffer pain under the three-drug combination and it ''doesn't seem too difficult'' to alter the medicines.

Snurkowski said that it would be up to the inmate to detail a new method, an argument that seemed to anger several court members.

''Doesn't the state have a minimal obligation on its own'' to investigate whether its executions cause gratuitous pain, asked Justice Anthony M. Kennedy.

The high court is delving into a limited part of the subject: whether inmates can file special last-minute challenges to the chemicals used in lethal injection even if they've exhausted all their regular appeals.

Even still, the justices had a wide-ranging discussion about the way executions are carried out, and how they can be contested.

Justice Antonin Scalia said that if justices allow Florida death row inmate Clarence Hill to pursue claims, that could drag out a case that has already been pending for more than two decades.

Hill, convicted of killing a police officer, was strapped to a gurney with lines running into his arms to deliver the drugs when the Supreme Court in January intervened and blocked the execution.

He claims that the chemicals used in Florida executions and by many other states -- sodium pentothal, pancuronium bromide and potassium chloride -- can cause excruciating pain. The first drug is a pain killer. The second one paralyzes the inmate and the third causes a fatal heart attack.

Justices have never ruled on the constitutionality of lethal injection, which is used by the federal government and every state that has capital punishment except Nebraska.

In this case, they can give inmates new authority to challenge lethal injection as unconstitutionally cruel. The court's decision to hear the case renewed legal efforts around the country on behalf of death row inmates, and executions have been stopped in California, Maryland and Missouri.

If the court allows Hill to file a civil rights action, ''it will be a stamp of approval from the United States Supreme Court for these challenges to go ahead,'' said Deborah Denno, a Fordham Law School professor.

She said the outcome may not reveal much about the new court.

Chief Justice John Roberts replaced the late William H. Rehnquist, and Justice Samuel Alito replaced the retired Sandra Day O'Connor.

O'Connor wrote the court's 2004 ruling in its last lethal injection case. Justices said that Alabama death row inmate David Larry Nelson could pursue a last-ditch claim that his death by lethal injection would be unconstitutionally cruel because of his damaged veins. He argued that prison staff would have to cut into his flesh to get to a vein.

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said, ''Hill's failure to follow the rules governing that process should not be rewarded by the opportunity to delay his well-deserved execution with a last-minute challenge in the form of a civil rights lawsuit.''

Hill was convicted of killing Pensacola Police Officer Stephen Taylor in 1982. Taylor's family is growing weary after 24 years of delays and want Hill, now 48, to be executed.

''It needs to be done and it needs to be over with,'' said Linda Knouse, the slain officer's sister.

The case is Hill v. McDonough, 05-8794.

------

On the Net:

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

    Supreme Court Debates Lethal Injection Method, NYT, 26.4.2006, http://www.nytimes.com/aponline/us/AP-Scotus-Lethal-Injection.html

High Court Rules

in Property Takeover Case

April 26, 2006
The New York Times
By DAVID STOUT

WASHINGTON, April 26 — The Supreme Court ruled, 5 to 3, today that Arkansas state officials were wrong to take away the home of a Little Rock man for nonpayment of real estate taxes.

The majority held, in a ruling that could affect how other states handle property takeovers, that the officials did not do enough when they sent certified mail to 717 North Bryan Street, telling Gary Jones that he was delinquent in his taxes, and when they published a notice of public sale in The Arkansas Democrat-Gazette.

As it turned out, there was no public sale, because no bids were submitted. The state was thus permitted to negotiate a private sale of the property, and it did, to one Linda Flowers. The state then sent yet another certified letter to 717 North Bryan, telling Mr. Jones that his property was about to be sold unless he paid up.

He did not pay, and Ms. Flowers bought the house in 2002 for just over $21,000, about a quarter of its fair market value. Mr. Jones learned about the sale from his daughter, who had learned about it after Ms. Flowers served an eviction notice.

The problem for Mr. Jones — and, as it turned out, for the state of Arkansas — was that he had moved out of the house in 1993, after he and his wife separated, and apparently never knew that it was about to be sold.

"Mr. Jones should have been more diligent with respect to his property, no question," Chief Justice John G. Roberts Jr. wrote. "People must pay their taxes, and the government may hold citizens accountable for tax delinquency. But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking."

Noting that the certified mail sent to 717 North Bryan had been returned because Mr. Jones was not there to sign for it, the chief justice wrote, "In response to the returned form suggesting that Jones had not received notice that he was about to lose his property, the state did — nothing."

Joining the chief justice were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Their ruling overturned decisions by the Arkansas Supreme Court and a lower state court, which had found against Mr. Jones in holding that the state had met its obligations.

The dissenters were Justices Clarence Thomas, Antonin Scalia and Anthony M. Kennedy. Their dissent, written by Justice Thomas, essentially found that Mr. Jones had created his own problems, and that the state had fulfilled its duty in trying to notify him before the house was sold.

Judge Samuel A. Alito Jr. took no part in the case, Jones v. Flowers, No. 04-1447. He joined the court after the case was argued.

The majority opinion said the justices took the case to resolve a conflict among the federal circuit courts and state supreme courts on whether the Fourteenth Amendment's due-process clause requires the government to take additional reasonable steps to notify a property when notice of a tax sale is returned undelivered.

In this case, at least, the answer is "yes," the majority declared, citing the peculiarities of Mr. Jones's situation.

He bought the house in 1967. His mortgage company paid the taxes each month, until 1997, when the mortgage was paid off. In April 2000, state officials attempted to notify Mr. Jones by certified mail of the delinquency. But no one was at home to sign for the mail, nor did anyone claim it at the post office within 15 days. The same thing happened two years later, when the sale was imminent.

The state could have tried to notify Mr. Jones by regular mail, or by posting a notice on the house, the majority held today.

"There is no reason to suppose that the state will ever be less than fully zealous in its efforts to secure the tax revenue it needs," Chief Justice Roberts wrote. "The same cannot be said for the state's efforts to ensure that its citizens receive property notice before the state takes action against them."

    High Court Rules in Property Takeover Case, NYT, 26.4.2006, http://www.nytimes.com/2006/04/26/us/26cnd-scotus.html

Arizona's Strict Approach

to Insanity Defenses

Gets a Hearing

Before the Supreme Court

April 20, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, April 19 — Eric M. Clark was 17 years old and suffering from paranoid schizophrenia when he shot and killed a Flagstaff, Ariz., police officer six years ago. Found incompetent to stand trial, he spent the next three years in a mental hospital.

After he received treatment and was deemed competent to stand trial, his insanity defense failed in the face of a combination of statutes and judicial decisions that make Arizona one of the most unreceptive states in the country to a criminal defendant's evidence of mental illness.

The question for the Supreme Court in an argument on Wednesday was whether the state's approach meets the basic test of fairness, or due process of law.

The court has never ruled that the Constitution requires a state to allow an explicit insanity defense, and four states — Kansas, Utah, Idaho and Montana — have in fact abolished such a defense.

But in those states, a defendant is permitted to present evidence of diminished mental capacity to negate the prosecution's assertion that he acted with criminal intent, an element that it is the state's burden to prove beyond a reasonable doubt.

In Arizona, by contrast, such evidence is barred from the trial. A defendant who relies on an insanity defense may request a verdict of "guilty except insane," which requires the defendant to demonstrate insanity under a statutory definition that is narrower than that in all but a handful of states.

Most states use either a two-part definition of insanity known as the M'Naghten rule, which stems from an English legal decision in 1843, or a modern and broader variant of the rule. The M'Naghten rule permits a defendant to show that because of a mental illness, he either did not know "the nature and quality" of the criminal act, or did not know that "he was doing what was wrong."

When the Arizona Legislature established the "guilty except insane" verdict in 1993, it eliminated the first prong of the M'Naghten definition, meaning that a defendant could not be found insane unless he could demonstrate that at the time of the crime, he did not know his conduct was wrong.

The result was that Mr. Clark, the teenager in Flagstaff, was barred from arguing that his delusions caused him to believe that he was shooting a space alien rather than a police officer. That prohibition, his lawyer, David I. Goldberg, told the court on Wednesday, meant that Mr. Clark did not receive a fair trial.

The case, Clark v. Arizona, No. 05-5966, is an appeal from the Arizona Court of Appeals, which affirmed Mr. Clark's conviction and life sentence for the crime of intentionally killing a police officer.

Mr. Goldberg offered the justices an analogy: "A person thinks he is squeezing a lemon, but it turns out to be his sister. He knows that killing his sister is wrong, but not that squeezing a lemon is wrong."

In focusing only on knowledge of right and wrong, Mr. Goldberg said, the Arizona law was constitutionally deficient in not permitting Mr. Clark to present a full defense. "A person could know in the abstract that killing is wrong, but not know that they were killing a person," he said.

Much of the debate during the argument centered on whether Arizona's narrowed definition of insanity made a practical difference. The state's lawyer, Randall M. Howe, chief counsel in the Arizona attorney general's office, asserted that nearly all those defendants who could have claimed that they did not understand the nature of their actions, the part of the definition that Arizona has eliminated, could also demonstrate that they did not know their acts were wrong.

"I won't pretend that under some theoretical, hypothetical scenario, that might not occur," Mr. Howe said, "but it is very difficult to imagine."

In any event, he said, "the state has discretion to define insanity as it sees fit."

Several justices appeared troubled, Justice John Paul Stevens among them. Could a defendant who "thought he had a mission in life to kill Martians," he asked, be convicted of murder for killing a person whom he thought was a Martian?

Mr. Howe replied, "If he truly believed he was shooting an alien, he would certainly have a very strong case for insanity." But he said that on the evidence found by the trial judge in this case, which was heard without a jury, Mr. Clark knew he was killing a police officer and, in fact, had planned the crime in advance.

The justices also had questions about Arizona's refusal to permit evidence of diminished capacity in rebuttal to the state's evidence of criminal intent. Mr. Goldberg, Mr. Clark's lawyer, said the refusal was unconstitutional "because it allows the state's evidence to go uncontested."

The state argued at the trial that Mr. Clark intentionally lured the police by driving around a residential neighborhood late at night with loud music blaring from his car. Mr. Goldberg said that under Arizona's rule, he was not permitted to argue that the purpose of the loud music was to drown out the voices that his client was hearing as the result of his illness.

Chief Justice John G. Roberts Jr. asked Mr. Howe, the state's lawyer, why the state could bar evidence of mental illness when it could not bar other types of evidence, like a defendant's inability to understand English, that might also be relevant to the question of intent. "What is it about mental capacity that allows you to exclude that type of evidence?" the chief justice asked.

Mr. Howe replied that the impact of mental illness on a defendant's ability to formulate the intent to commit a crime was "just too complex a question to ask a jury or judge to decide."

Solicitor General Paul D. Clement also argued on Arizona's behalf. While federal law applies to both parts of the insanity definition, Mr. Clement said in his brief, "the United States has an interest in ensuring that Congress retains authority to revise the standard."

    Arizona's Strict Approach to Insanity Defenses Gets a Hearing Before the Supreme Court, NYT, 20.4.2006, http://www.nytimes.com/2006/04/20/washington/20scotus.html

L.A. Catholic Church loses battle

over priest files

Mon Apr 17, 2006
9:11 PM ET
Reuters

LOS ANGELES (Reuters) - The Roman Catholic archdiocese of Los Angeles, the largest in the nation, lost a four-year legal fight on Monday to keep private the files of two priests accused of molesting children.

The U.S. Supreme Court declined to take up the case, meaning that Cardinal Roger Mahony will have to hand over to Los Angeles prosecutors the records of all communications regarding the two priests.

The Los Angeles archdiocese has fought one of the most vigorous battle in the United States to prevent the files of priests accused of abuse from being made public.

The Survivor's Network of those Abused by Priests criticized Mahony's tactics, saying on Monday he had "spent hundreds of thousands of dollars, donated by generous Catholics, on far-fetched and increasingly unsuccessful legal maneuvers to keep hidden the secrets about abusive priests and complicit bishops."

The abuse scandal erupted in Boston in 2002 and spread to almost every Catholic diocese in the nation. Scores of dioceses have already released personal files of implicated priests and many have reached multimillion dollar settlements with victims.

Monday's ruling effectively upheld a lower court order that 14 documents in the files of two priests should be made available to a Los Angeles grand jury.

It also paved the way for the release of confidential records sought by more than 500 people who have brought civil lawsuits against the archdiocese. By some estimates, the Los Angeles archdiocese could face a possible total settlement of $1 billion.

The archdiocese said in a statement that Monday's decision was "disappointing," noting that it was working on efforts to settle civil cases through mediation.

In a statement, Los Angeles District Attorney Steve Cooley said the ruling was "a decisive victory" for local victims of clerical abuse.

"The U.S. Supreme Court's denial to review this matter establishes an important principle that evidence of criminality be made available to appropriate authorities," Cooley said.

    L.A. Catholic Church loses battle over priest files, R, 17.4.2006, http://today.reuters.com/news/articlenews.aspx?type=domesticNews&storyID=2006-04-18T011115Z_01_N17301965_RTRUKOC_0_US-CRIME-CHURCH.xml

Supreme Court rejects Padilla appeal

Mon Apr 3, 2006 1:09 PM ET
Reuters
By James Vicini

WASHINGTON (Reuters) - The U.S. Supreme Court on Monday rejected an appeal by terrorism suspect Jose Padilla and avoided deciding whether President George W. Bush can order Americans captured in the United States to be held in military jails without criminal charges or a trial.

By a 6-3 vote, the high court refused to hear Padilla's appeal. He was confined in a military brig in South Carolina for more than three years after Bush designated him an "enemy combatant."

The court's action does not amount to a ruling on the merits in the high-profile terrorism case and does not create any national precedent.

The case was affected by the Justice Department's decision to bring criminal charges against Padilla in November, after his attorneys appealed to the high court. The court sided with the department, which argued the new charges made the appeal pointless.

Padilla, a U.S. citizen who was transferred from military to civilian custody in Florida on January 5, has pleaded not guilty to charges of being part of a cell that provided money and recruits for terrorists overseas.

Padilla's appeal fell one vote short of the four needed for the Supreme Court to hear and decide a case.

Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justice John Paul Stevens, cited the changed circumstances of Padilla's custody and wrote that he could bring a new challenge if the government again detains him as an enemy combatant.

Padilla attorney Andrew Patel expressed disappointment that the court decided against hearing the case but said he was heartened by Kennedy's comment.

SUPREME COURT SAID TO BE WATCHING

"They seem to be saying, 'We're not going to take this one, but we are watching and we are not going to let this happen again'," Patel said.

Deborah Pearlstein of watchdog group Human Rights First said, "Justice Kennedy's opinion declining review made it clear that Mr. Padilla has a reasonable fear that his rights will be withdrawn again -- and if that happens, the courts should not hesitate to act."

The action marked the second time the court has avoided deciding Padilla's challenge to Bush's powers. In 2004, it ruled the case should have been brought in South Carolina instead of in New York.

Justices David Souter, Stephen Breyer and Ruth Bader Ginsburg voted to hear the appeal. Ginsburg wrote that the case raised a profoundly important issue.

"Although the government has recently lodged charges against Padilla in a civilian court, nothing prevents the executive from returning to the road it earlier constructed and defended," she said.

The criminal charges now pending against Padilla contain no reference to accusations made by U.S. officials after his arrest in May 2002 that he plotted with al Qaeda to set off a radioactive "dirty bomb" in the United States and blow up U.S. apartment buildings.

A U.S. appeals court also had said the belated decision to charge Padilla gave the impression the government was trying to avoid a high-court review of the case.

Last week, the court heard arguments on whether Bush has the power to create military tribunals for Guantanamo prisoners. A decision is expected by the end of June.

    Supreme Court rejects Padilla appeal, NYT, 3.4.2006, http://today.reuters.com/news/
newsArticle.aspx?type=newsOne&storyID=2006-04-03T170816Z_01_WAT005212_RTRUKOC_0_US-SECURITY-PADILLA.xml

Justices, 6-3,

Sidestep Ruling on Padilla Case

April 3, 2006
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- A divided Supreme Court on Monday rejected an appeal from Jose Padilla, held as an enemy combatant without traditional legal rights for more than three years, sidestepping a challenge to Bush administration wartime detention powers.

Padilla, a former Chicago gang member and a convert to Islam, was moved in January to Miami to face criminal charges, and the government argued that the appeal over his indefinite detention was now pointless.

Three justices said the court should have agreed to take up the case anyway: Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer.

And three other court members, including Chief Justice John Roberts, said that they would be watching to ensure Padilla receives the protections "guaranteed to all federal criminal defendants."

An appeals court panel had all but called for the high court to deal with the case, saying it was troubled by the Bush administration's change in legal strategy -- it brought criminal charges only after it looked like the Supreme Court was going to step in.

Justices first considered in 2004 whether Padilla's constitutional rights were violated when he was detained as an "enemy combatant" without charges and access to a lawyer, traditional legal rights. Justices dodged a decision on technical grounds. In a dissent Justice John Paul Stevens said then that "at stake in this case is nothing less than the essence of a free society."

Justices are reviewing a second case arising from the government pursuit of terrorists, an appeal by a foreign terrorist suspect facing a military commission on war crimes charges at Guantanamo Bay, Cuba. Arguments were last week.

Padilla's case was different. It asked the court to clarify how far the government can go when its hunt for terrorists leads to Americans in this country.

Based on the vote breakdown, it appears the court would have agreed to hear the appeal had Padilla not been charged.

"In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again," Justice Anthony M. Kennedy wrote for himself, Stevens and Roberts. "That concern, however, can be addressed if the necessity arises."

Padilla was arrested in 2002 after a trip to Pakistan. The government alleged at the time that he was part of a plot to detonate a radiological "dirty bomb" in the United States.

The Bush administration has maintained since 2002 that it had the power to detain him without charges. However, in an abrupt change in strategy, the government late last year brought criminal charges against Padilla. His appeal was pending at the Supreme Court at the time.

The charges do not match the long-standing allegations that Padilla sought to blow up apartment buildings. Instead, he was charged with being part of a North American terrorism cell that raised funds and recruited fighters to wage violent jihad outside the United States.

The strategy shift angered a panel of 4th U.S. Circuit Court of Appeals in Richmond, Va., which had ruled last September that Padilla's constitutional rights had not been violated by his detention.

Judge J. Michael Luttig, a conservative who was named to the bench by President Bush's father, wrote in a decision late last year that the administration's actions left the impression that Padilla had been held in military custody "by mistake."

Ginsburg said Monday that although Padilla is charged in civilian court "nothing prevents the executive (branch) from returning to the road it earlier constructed and defended."

"This case, here for the second time, raises a question 'of profound importance to the nation,"' she wrote.

Padilla pleaded innocent in Florida to the criminal charges and is scheduled to be put on trial this fall. A federal judge refused to set bail for Padilla after a prosecutor said he had a history of arrests and convictions for violent crimes -- including murder as a juvenile.

The case is Padilla v. Hanft, 05-533.

    Justices, 6-3, Sidestep Ruling on Padilla Case, NYT, 3.4.2006,
http://www.nytimes.com/2006/04/03/us/03cnd-scotus.html

Justices Hear Arguments

Over Whether Foreigners

Have Reciprocal Rights in the U.S.

March 30, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, March 29 — The question before the Supreme Court on Wednesday was whether an international treaty that protects people embroiled in another country's criminal justice system gives foreign citizens any specific rights they can assert in American courts.

There was no dispute that authorities in Oregon and Virginia violated the treaty, the Vienna Convention on Consular Relations, in the two cases that were before the court in a single extended argument.

Article 36 of the treaty, which the United States ratified in 1969, gives people who are arrested and detained in a foreign country a right known as consular notification, which dictates that they be informed that at their request their country's diplomats will be notified and made available to advise them.

Neither Moises Sanchez-Llamas, a Mexican who was convicted of attempted murder in Oregon for shooting a police officer, nor Mario A. Bustillo, a Honduran convicted of a gang-related murder in Springfield, Va., a Washington suburb, received the required notice at the time of their arrests.

The question was what remedy, if any, existed for the violation. Five lawyers debated the issue: one for each defendant, the solicitors general of Oregon and Virginia, and a deputy United States solicitor general.

The three government officials argued that the treaty governs relationships between nations, and that the remedy for a violation of consular notification was limited to a diplomatic protest or formal apology. The United States in fact issued a formal apology to Honduras in the case of Mr. Bustillo, who is serving a 30-year sentence for the 1997 killing.

The lawyers for the defendants argued that so limited a view ran counter to the undisputed principle that a treaty, once ratified, becomes part of a country's domestic law. Consequently, they argued, foreign defendants should have access to the same remedies that the legal system offers for government violations of rights protected by American law.

Accordingly, Mr. Sanchez-Llamas is arguing that incriminating statements he made to the police be suppressed because he had not received his consular notification at the time he made them. His lawyer's argument that such an exclusion should apply — similar to the rule that bars the introduction of illegally seized evidence — was rejected by the Oregon Supreme Court and did not make much headway with the justices on Wednesday.

After the lawyer, Peter Gartlan, acknowledged that the Vienna Convention says nothing about suppressing evidence, Chief Justice John G. Roberts Jr. asked, "So if the treaty doesn't say 'suppress,' what authority does a federal court have to tell a state court to suppress?"

The other defendant, Mr. Bustillo, is arguing that he is entitled to reversal of his conviction on the ground that Honduran officials, had they been notified of his arrest, would have helped identify another Honduran man who returned to Honduras after the murder and who, Mr. Bustillo asserts, was the real killer.

His lawyer, Mark T. Stancil, argued that because Virginia was not forced to reopen the case to permit the new evidence, the state was able to benefit from its violation of the Vienna Convention.

Here, too, the justices were skeptical. Several suggested that the fact that Mr. Bustillo had been provided with a lawyer was enough to insulate any Vienna Convention violation. The state, they said, had a right to expect that lawyers would inform their clients of their Vienna Convention rights.

"The lawyer should be taxed with knowing it because it's the law of the land," Justice David H. Souter said, referring to the treaty.

The International Court of Justice, often referred to as the World Court, takes the view that the convention confers individual rights. It ruled in 2004, in a case brought by Mexico, that the United States could not permit the execution of 51 Mexicans, on death row in various states, who had not received their consular notification.

After that ruling, and while a Supreme Court appeal brought by one of the Mexicans, José Ernesto Medellín, was pending, the Bush administration withdrew the United States from the provision of the treaty that gives the World Court jurisdiction over disputes of this kind. At the same time, the administration told state courts to abide by the decision. The Supreme Court dismissed the Medellín case last May without ruling on the enforceability of the Vienna Convention.

Deputy Solicitor General Gregory G. Garre was asked about the World Court's position by Justice Stephen G. Breyer, who referred to that court by its initials, I. C J.

Mr. Garre replied, "To be blunt, the I. C. J. decision is wrong." He said that while the World Court was entitled to "respectful consideration," its decision was "certainly not" binding on the United States.

Mr. Garre said that the State Department was making "extensive efforts" to make sure state and local governments were aware of the need to inform foreign defendants of the right to consular notification. The department has distributed 600,000 cards to police departments, he said, adding, "These efforts are working."

But it appeared that Vienna Convention issues would probably not disappear. Justice Anthony M. Kennedy asked Mary H. Williams, the Oregon solicitor general, why the police, who already give Miranda warnings, could not simply be told to ascertain the citizenship of people they take into custody so that the required notice could be given.

That was "not so easy," said Ms. Williams.

"I don't see why it's so complicated," Justice Kennedy said. He was joined by Justice Souter, who asked Ms. Williams, "You ask his name, why not his citizenship?"

Ms. Williams replied, "We're moving toward that goal."

Justice Souter was less than satisfied. "Why does it have to be a distant goal?" he asked.

The cases are Sanchez-Llamas v. Oregon, No. 04-10566, and Bustillo v. Johnson, No. 05-51.

    Justices Hear Arguments Over Whether Foreigners Have Reciprocal Rights in the U.S., NYT, 30.3.2006, http://www.nytimes.com/2006/03/30/politics/30scotus.html

Justices Hint That They'll Rule

on Challenge Filed by Detainee

March 29, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, March 28 — As the justices of the Supreme Court took their seats Tuesday morning to hear Osama bin Laden's former driver challenge the Bush administration's plan to try him before a military commission, one question — perhaps the most important one — was how protective the justices would be of their jurisdiction to decide the case.

The answer emerged gradually, but by the end of the tightly packed 90-minute argument, it was fairly clear: highly protective.

At least five justices — Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, David H. Souter and John Paul Stevens — appeared ready to reject the administration's argument that the Detainee Treatment Act, passed and signed into law after the court accepted the case in November, had stripped the court of jurisdiction.

It was less certain by the end of the argument how the court would then go on to resolve the merits of the case, a multipronged attack on the validity of the military commissions themselves and on their procedures. Lawyers for the former driver, a Yemeni named Salim Ahmed Hamdan who is charged with conspiracy, also argue that he cannot properly be tried before any military commission for that crime because conspiracy is not recognized as a war crime.

Solicitor General Paul D. Clement was on the defensive throughout his argument. His stolid refusal to concede that any of the government's positions, on the jurisdictional as well as ultimate questions of the case, might present even theoretical problems provoked the normally soft-spoken Justice Souter into an outburst of anger.

What appeared to trouble Justice Souter most was Mr. Clement's discussion with Justice Stevens about whether Congress's removal of the federal courts' jurisdiction to hear habeas corpus petitions from detainees at the naval base at Guantánamo Bay, Cuba, amounted to "suspending" the writ of habeas corpus.

Suspending habeas corpus is an action, limited by the Constitution to "cases of rebellion or invasion," that Congress has taken only four times in the country's history. Habeas corpus is the means by which prisoners can go to court to challenge the lawfulness of their confinement, and its suspension is historically regarded as a serious, if not drastic, step.

Mr. Clement's position was that Congress had not in fact suspended habeas corpus, but that it might constitutionally have done so given "the exigencies of 9/11." Addressing Justice Stevens, the solicitor general said, "My view would be that if Congress sort of stumbles upon a suspension of the writ, that the preconditions are satisfied, that would still be constitutionally valid."

Justice Souter interrupted. "Isn't there a pretty good argument that suspension of the writ of habeas corpus is just about the most stupendously significant act that the Congress of the United States can take," he asked, "and therefore we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?"

When Mr. Clement began to answer, Justice Souter persisted: "You are leaving us with the position of the United States that the Congress may validly suspend it inadvertently. Is that really your position?"

The solicitor general replied, "I think at least if you're talking about the extension of the writ to enemy combatants held outside the territory of the United States —— "

"Now wait a minute!" Justice Souter interrupted, waving a finger. "The writ is the writ. There are not two writs of habeas corpus, for some cases and for other cases. The rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus."

Justice Breyer, in his questioning of Mr. Clement, practically begged the solicitor general to endorse an alternative approach that would allow the court to avoid "the most terribly difficult and important constitutional question of whether Congress can constitutionally deprive this court of jurisdiction in habeas corpus cases."

The alternative at hand was the one offered by Mr. Hamdan's lawyer, Neal Katyal, a law professor at Georgetown University. That was to interpret the Detainee Treatment Act as applying only prospectively, stripping federal courts of hearing future cases brought by the detainees but allowing the Supreme Court to continue with at least this one.

The argument was a textual one, based on a slight change in wording from the measure originally proposed by Senator Lindsey Graham, Republican of South Carolina, to the version the Senate eventually passed after Senator Carl Levin, Democrat of Michigan, and others raised objections to taking the Hamdan case away from the Supreme Court.

Mr. Graham, who filed a brief in this case, and the administration maintain that the change was immaterial. But the justices appeared ready to embrace the ambiguity if it would allow them to retain jurisdiction and proceed with the case.

Only eight justices will vote in the case, Hamdan v. Rumsfeld, No. 05-184. Chief Justice John G. Roberts Jr. is not sitting, because he was a member of the three-judge panel of the federal appeals court here that rejected Mr. Hamdan's challenge to the military commissions in a decision last July.

Of the other members of the court, Justice Antonin Scalia appeared most supportive of the administration. He intervened several times to offer Mr. Clement a helping hand, something the solicitor general rarely needs but accepted gratefully.

For example, Justice Kennedy was questioning Mr. Clement on the government's position that even if the court had jurisdiction, it should abstain from ruling on the validity of the military commission until after Mr. Hamdan's trial.

Justice Kennedy said he found the argument troubling, pointing out that Mr. Hamdan was arguing that because the commissions lacked the procedures required by the Geneva Conventions, they were invalid.

Mr. Clement replied that Mr. Hamdan could raise that argument later, before the military commission itself. He predicted that the argument would fail and said that in any event, there was no reason "why that claim has to be brought at this stage."

Justice Scalia then jumped in to support the solicitor general. "In the normal criminal suit," he said, "even if you claim that the forum is not properly constituted, that claim is not adjudicated immediately."

"Well, of course, that's true," Mr. Clement said.

Justice Scalia went on: "We don't intervene on habeas corpus when somebody says that the panel is improperly constituted. We wait until the proceeding's terminated, normally."

"That's exactly right, Justice Scalia," Mr. Clement said.

Justice Kennedy objected. "Is that true?" he asked. "If a group of people decides they're going to try somebody, we wait until that group of people finishes the trial before the court intervenes to determine the authority of the tribunal?"

"With respect, Justice Kennedy, this isn't 'a group of people,' " Mr. Clement replied. "This is the president invoking an authority that he's exercised in virtually every war that we've had."

Along with Justice Scalia, Justice Samuel A. Alito Jr. also appeared to support the argument that the court should allow the trial to go forward. Justice Clarence Thomas alone asked no questions.

Mr. Clement argued that the detainee law would allow a detainee to argue in federal court, after a conviction by a military commission, that the commission's procedures were illegal or unconstitutional.

Justice Ginsburg then asked him to "straighten me out." She said, "I thought it was the government's position that these enemy combatants do not have any rights under the Constitution and laws of the United States."

"That is true, Justice Ginsburg," the solicitor general answered.

In many respects, the argument marked a resumption of the encounter between the court and the Bush administration two years ago, in cases that led to the court's rejection of the administration's claim to broad authority to proceed without judicial oversight. The administration was once again seeking "fundamentally open-ended authority," the "blank check" the court had rejected then, Mr. Katyal said.

    Justices Hint That They'll Rule on Challenge Filed by Detainee, NYT, 29.3.2006,
http://www.nytimes.com/2006/03/29/politics/29scotus.html

Top court won't review

anthrax libel ruling

Mon Mar 27, 2006 10:48 AM ET
The New York Times
By James Vicini

WASHINGTON (Reuters) - The Supreme Court on Monday allowed former U.S. Army scientist Steven Hatfill to proceed with his libel lawsuit against The New York Times Co. over columns he said implicated him in the 2001 anthrax killings.

The justices refused to review a U.S. appeals court ruling that reinstated the lawsuit, which claimed that columns by Nicholas Kristof published by the newspaper in 2002 defamed Hatfill and caused him emotional distress.

Hatfill, a bioterrorism expert who formerly worked at the Army Medical Institute of Infectious Disease at Fort Detrick in Maryland, has denied any involvement in the mailing of anthrax-laced letters that killed five people in the weeks after the September 11 hijackings and heightened concerns that America was under attack.

In 2002, federal law enforcement officials, including Attorney General John Ashcroft, called Hatfill a "person of interest" in the investigation into who sent the letters to members of Congress and the news media.

Hatfill, whose home in Maryland was searched by the FBI, never was charged with any crime in the anthrax attacks, which remain unsolved.

Attorneys for the Times argued the appeals court's ruling imposed substantial burdens on freedom of speech and of the press and would inhibit criticism of the government about matters of public concern.

The columns criticized the FBI's "inept" and "lackadaisical" handling of the investigation and expressed the view that the missteps had made the nation significantly more vulnerable to a potential bioterrorism attack.

The Times' attorneys also told the Supreme Court that the decision would invite additional litigation and require news organizations to defend claims that previously would not have been filed or would have been dismissed at the outset.

More than 30 news media companies and groups supported the appeal and said the Supreme Court should adopt a general rule protecting the press from liability for accurately reporting on government investigations.

Attorneys for Hatfill opposed the appeal and said the case did not warrant Supreme Court review. They said the appeals court applied settled law to the specific facts of the case.

The Supreme Court rejected the appeal without any comment or recorded dissent.

Hatfill sued the Times in federal court in Alexandria, Virginia, where a federal judge initially dismissed the lawsuit. The high court's rejection of the Times' appeal cleared the way for the case to go back to the judge for more proceedings.

    Top court won't review anthrax libel ruling, R, 27.3.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-03-27T154821Z_01_N0911883_RTRUKOC_0_US-USA-COURT-ANTHRAX.xml

Guantanamo tribunals

under court scrutiny

Mon Mar 27, 2006 12:16 PM ET
Reuters
By James Vicini

WASHINGTON (Reuters) - Osama bin Laden's former driver is at the heart of a U.S. Supreme Court case this week that could determine whether President George W. Bush has the power to use military tribunals in his war on terrorism.

The case, focusing on the war crimes tribunals for prisoners at the U.S. military base in Guantanamo, Cuba, also will weigh the balance of power between the presidency and the courts.

In 90 minutes of arguments on Tuesday, the session could produce the most significant ruling on presidential war powers since the end of World War Two.

"Reduced to its essence, the government's argument is that the federal judiciary has no real power to review actions taken by the president in the name of fighting terrorism," wrote University law professor Neal Katyal, who is defending bin Laden's former driver-bodyguard, Salim Ahmed Hamdan.

In revisiting Bush's policies in the war on terrorism for the first time in nearly two years, the Supreme Court also will take up a second important issue on whether Guantanamo prisoners can go to court in the United States to enforce the protections of the Geneva Convention.

The Bush administration says the president has the power to create the military tribunals and the protections of the Geneva Convention do not apply. In the past, the Supreme Court has provided a check on the president's powers in the war on terrorism.

Before the justices can rule on either issue, they must decide a third crucial issue -- whether a recent law stripped the court of its jurisdiction over the appeal by a Yemeni accused of being Osama bin Laden's bodyguard and driver.

The Detainee Treatment Act, signed by Bush on December 30, severely restricts the ability of prisoners at Guantanamo to bring challenges in federal court.

The Bush administration argued the law applied to all existing cases and that the Supreme Court must dismiss Hamdan's appeal without deciding the key issues.

Hamdan's attorneys disagreed. They said the U.S. Congress did not intend to strip the court of the power to decide challenges to the lawfulness of the tribunals.

SCALIA QUESTIONS RIGHTS

During the weekend Newsweek magazine reported Justice Antonin Scalia in a private meeting in Switzerland dismissed the idea that Guantanamo detainees have constitutional rights. Critics complained that he was prejudging the issue and should step aside, although there was no indication he would.

Formally called military commissions, the special tribunals were authorized by Bush after the September 11 attacks and have been criticized by human rights groups as being fundamentally unfair.

Katyal said Bush lacked the authority to establish the tribunals, based on the president's inherent powers or the joint resolution authorizing military force that the U.S. Congress approved after the September 11 attacks.

"Here, the president seeks not merely to detain temporarily but to dispense life imprisonment and death through a judicial system of his own design," Katyal told the court in a written brief filed on March 14.

But Solicitor General Paul Clement of the U.S. Justice Department argued the United States throughout its history has used military commissions to try violations of the law of war.

"Ninety years ago, in revising the articles of war, Congress recognized that historic practice and approved its continuing use," he said. "And this court upheld the use of military commissions during and after World War Two."

Clement repeated Bush's position that the Geneva Convention does not cover or give prisoner-of-war status to al Qaeda members like Hamdan.

The Hamdan case will be heard by eight justices. Chief Justice John Roberts has removed himself because before joining the Supreme Court, he was part of a U.S. appeals court panel that ruled against Hamdan.

A 4-4 tie would not produce a ruling on the merits but would affirm the appeals court decision for the government.

In June 2004, the court dealt the administration a stinging defeat by ruling that Guantanamo prisoners could bring challenges in U.S. courts and that Americans held as enemy combatants must be allowed to contest their detention.

    Guantanamo tribunals under court scrutiny, R, 27.3.2006, http://today.reuters.com/news/
newsArticle.aspx?type=topNews&storyID=2006-03-27T171640Z_01_N27270934_RTRUKOC_0_US-SECURITY-COURT.xml&archived=False

FACTBOX-

Key facts

on Guantanamo military tribunal case

Mon Mar 27, 2006 12:16 PM ET
Reuters

(Reuters) - The U.S. Supreme Court considers on Tuesday a potential landmark case that challenges President George W. Bush's power to create military war crimes tribunals for Guantanamo prisoners. Following are five key facts:

-- Shortly after the September 11 attacks, Bush authorized the special tribunals, formally called military commissions. They drew immediate criticism from human rights groups as being fundamentally unfair.

-- The challenge was brought by Salim Ahmed Hamdan, a Yemeni accused of being Osama bin Laden's bodyguard and driver. He was captured in Afghanistan in November 2001 and then was transferred to the U.S. military base at Guantanamo Bay in Cuba.

-- Of the 490 suspected al Qaeda and Taliban prisoners now at the base, 10 people, including Hamdan, face charges before a tribunal. There have been hearings in some of the cases, the first military tribunals for the United States since World War Two.

-- The court also agreed to decide a second issue of whether Guantanamo prisoners can enforce Geneva Convention protections in U.S. courts. A third crucial issue is whether a new law has stripped the high court of its jurisdiction over the case.

-- The Hamdan case will be heard by eight of the nine high court members. Chief Justice John Roberts has removed himself from the case. Before joining the Supreme Court, he was part of a U.S. appeals court panel that ruled against Hamdan.

    FACTBOX-Key facts on Guantanamo military tribunal case, R, 27.3.2006, http://today.reuters.com/news/
NewsArticle.aspx?type=topNews&storyID=2006-03-27T171628Z_01_N1522354_RTRUKOT_0_TEXT0.xml&related=true

Detainee Case

Will Pose Delicate Question for Court

March 27, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, March 26 — The Supreme Court's announcement four months ago that it would rule on the validity of the military commission by which the Bush administration wants to try Osama bin Laden's former driver, on charges of conspiracy to commit terrorism, appeared to mark a resumption of a struggle for supremacy between the court and the White House.

That struggle initially played out in three cases on terrorism and civil liberties in June 2004. In accepting the new case, as in the previous ones, the justices rejected the administration's argument that the court should simply stay out and let the president conduct his fight against terrorism unconstrained by judicial oversight.

But no one foresaw back in November that the case of the driver, Salim Ahmed Hamdan, to be argued on Tuesday, would present the Supreme Court with an additional and perhaps even greater challenge.

In the face of a measure that Congress passed and President Bush signed into law in late December to strip the federal courts of jurisdiction over cases brought by detainees at the United States naval base at Guantánamo Bay, Cuba, where Mr. Hamdan has been held since 2002, the court must decide whether it retains the right to proceed with this case at all.

For a court that has been highly protective of its own prerogatives, but at the same time notably attentive to the often arcane limits on federal court jurisdiction, the question is one of great delicacy, infused with historical resonance. Not since the immediate aftermath of the Civil War, in a case that arose from the power struggles of the Reconstruction era, has the Supreme Court permitted Congress to divest it of jurisdiction over a case it has already agreed to decide.

In that case, Ex Parte McCardle, the court had already heard four days of argument in an appeal brought by a rabble-rousing Mississippi newspaper editor who had been taken into custody and charged by the military government with fomenting insurrection.

Fearful that a Supreme Court ruling in favor of the editor, William H. McCardle, could result in invalidating military control of the former Confederate states, Congress enacted a law over President Andrew Johnson's veto to deprive the court of jurisdiction. The court then dismissed the appeal, rejecting the argument by McCardle's lawyer that it was permitting Congress to usurp the judicial function.

In the new case, Hamdan v. Rumsfeld, No. 05-184, the Bush administration filed a motion with the court in early January, days after the Detainee Treatment Act was signed into law, urging immediate dismissal of Mr. Hamdan's appeal.

"It is well settled that statutes that remove jurisdiction apply to pending cases and ordinarily should be given immediate effect," the administration, citing the McCardle case, said in the brief accompanying its motion.

More than a month later, on Feb. 21, the court declined to act on the motion, announcing instead that it would take up the jurisdictional question as part of the argument on the merits of the case. It added 30 minutes to Tuesday's argument, originally scheduled for one hour, for that purpose.

The McCardle case has been seen by many modern legal scholars as problematic, a regrettable expression of judicial weakness. Mr. Hamdan's lawyers cite it as well, but for a different proposition. While Congress spoke clearly in the court-stripping amendment at issue in the McCardle case, their brief tells the court, the Detainee Treatment Act is ambiguous on its application to pending, as opposed to future, cases. The court should interpret the act as not applying to the Hamdan case to avoid the "grave constitutional questions" that would otherwise arise, they say.

A group of law professors who filed a brief on this point on Mr. Hamdan's behalf warn the court that to give up jurisdiction would be to yield to "an unconstitutional interference with access to courts and an attack on the fundamental structure of the Constitution."

The argument rests in part on the observation that according to the language of the Detainee Treatment Act, Guantánamo detainees who are tried by a military commission will have only a circumscribed right to a subsequent appeal in federal court, in which they could not raise the basic challenge to the commission's operation that Mr. Hamdan is presenting in his Supreme Court case. So if the justices cannot decide his case, or cases brought by some 150 of the other 500 Guantánamo detainees now pending in the lower courts, fundamental questions about this alternative system of justice will go unresolved.

There may be a separate obstacle in the Supreme Court's way. Only eight justices are participating in the case, raising the prospect of a 4-to-4 tie. Chief Justice John G. Roberts Jr. is recused because he was a member of the three-judge panel of the United States Court of Appeals for the District of Columbia Circuit that upheld the government's position in the Hamdan case last July, four days before Mr. Bush nominated him to the Supreme Court.

A tie vote in the Supreme Court ordinarily simply affirms the lower court decision, without issuing an opinion or setting a precedent. But in this case, there is no lower court opinion on the jurisdictional question, since there was no Detainee Treatment Act when the appeals court ruled last July.

It would require a majority, five of the eight votes, to grant the government's motion to dismiss the case, but the matter might not be as straightforward as that. Even if the government had not filed its motion, the court would still be obliged to assure itself that it has jurisdiction to proceed, in this as in any other case. Whether a tie favors jurisdiction or dismissal appears to be an open question of Supreme Court procedure.

Military commissions are not new; they were first used by Gen. Winfield Scott during the war with Mexico in the 1840's. But there have been none since the World War II era. If the court addresses the merits of the Hamdan case, it must decide whether Mr. Bush's military order of Nov. 13, 2001, establishing military commissions to try noncitizens for "acts of international terrorism," had proper authorization.

The administration argues that there were "multiple authorizations": from the Congressional resolution known as the Authorization for the Use of Military Force, adopted days after the terrorist attacks of Sept. 11, 2001; from the Uniform Code of Military Justice, which refers to military commissions and authorizes the president to prescribe rules for their operation; and from the president's inherent powers as commander in chief.

In addition, the administration argues that the Detainee Treatment Act itself ratified the establishment of military commissions when it circumscribed judicial review of their operations.

Mr. Hamdan's military and civilian lawyers, as well as the dozens of organizations and individuals supporting his appeal as "friends of the court," argue to the contrary that no Congressional enactment or inherent power authorized the president to set up what they call a "jerrybuilt tribunal" that falls short of the procedural protections offered by American military law and required by the Geneva Conventions.

In addition, they argue, conspiracy, with which Mr. Hamdan has been charged, is not a war crime and is therefore not subject to trial by military commission.

The administration argues that the Geneva Conventions do not apply to the conflict with Al Qaeda and that their protections cannot, in any event, be invoked by individual detainees. These assertions have provoked a flood of counterarguments from international law specialists, former senior diplomats and federal judges, and human rights organizations.

    Detainee Case Will Pose Delicate Question for Court, NYT, 27.3.2006, http://www.nytimes.com/2006/03/27/politics/27scotus.html

Roberts Dissent Reveals

Strain Beneath Court's Placid Surface

March 23, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, March 22 — A Supreme Court decision on Wednesday in an uncelebrated criminal case did more than resolve a dispute over whether the police can search a home without a warrant when one occupant gives consent but another objects.

More than any other case so far, the decision, which answered that question in the negative by a vote of 5 to 3, drew back the curtain to reveal the strains behind the surface placidity and collegiality of the young Roberts court.

It was not only that this case, out of 32 decided since the term began in October, provoked Chief Justice John G. Roberts Jr. to write his first dissenting opinion. He had cast two earlier dissenting votes, and had to write a dissenting opinion eventually. And although there has been much commentary on the court's unusually high proportion of unanimous opinions, 22 so far compared with only 27 in all of the last term, few people expected that rate to continue as the court disposed of its easiest cases and moved into the heart of the term.

Rather, what was striking about the decision in Georgia v. Randolph, No. 04-1067, was the pointed, personal and acerbic tone in which the justices expressed their disagreement over whether the Fourth Amendment's ban on unreasonable searches was violated when the police in Americus, Ga., arriving at a house to investigate a domestic dispute, accepted the wife's invitation to look for evidence of her husband's cocaine use.

The dueling opinions themselves were relatively straightforward; as has often been the case in the court's recent past, although not so far this term, the justices revealed their real feelings in the footnotes.

Writing for the majority, Justice David H. Souter said the search was unreasonable, given the vocal objection of the husband, Scott Randolph. True, Justice Souter said, the court had long permitted one party to give consent to a search of shared premises under what is known as the "co-occupant consent rule." But he said that rule should be limited to the context in which it was first applied, the absence of the person who later objected.

The presence of the objecting person changed everything, Justice Souter said, noting that it defied "widely shared social expectations" for someone to come to the door of a dwelling and to cross the threshold at one occupant's invitation if another objected.

"Without some very good reason, no sensible person would go inside under those conditions," he said.

"We have, after all, lived our whole national history with an understanding of the ancient adage that a man's home is his castle," Justice Souter said. "Disputed permission is thus no match for this central value of the Fourth Amendment."

Justices John Paul Stevens, Anthony M. Kennedy and Ruth Bader Ginsburg joined the majority opinion, as did Justice Stephen G. Breyer, who explained himself in a concurring opinion notable for its ambivalent tone. Justice Samuel A. Alito Jr. did not vote, as he was not a member of the court when the case was argued.

The dissenters, in addition to Chief Justice Roberts, were Justices Antonin Scalia and Clarence Thomas. In his opinion, the chief justice took aim at the majority's description of social custom, as well as its reliance on that description to reshape "a great deal of established Fourth Amendment law."

Every lower federal court to have considered the issue, as well as most state courts, had concluded that one party's consent was sufficient. The Georgia Supreme Court, in its 2004 decision that the justices affirmed, was in the minority, ruling in this case that the evidence of Mr. Randolph's cocaine use was inadmissible.

"The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations," Chief Justice Roberts said. For example, he continued, "a guest who came to celebrate an occupant's birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate's objection."

Noting that "the possible scenarios are limitless," he said, "Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumption — that an invited guest encountering two disagreeing co-occupants would flee — beyond a hunch about how people would typically act in an atypical situation."

The majority missed the point, the chief justice said; the fact is that someone choosing to share space has also, already, chosen to share privacy.

"Our common social expectations may well be that the other person will not, in turn, share what we have shared with them with another — including the police," he said, "but that is the risk we take in sharing."

That was the analysis, and then came the footnotes.

Justice Souter, usually mild-mannered to a fault, said in Footnote 4 that "in the dissent's view, the centuries of special protection for the privacy of the home are over." By invoking a "false equation" between inviting the police into the home and reporting a secret, he said, the chief justice "suggests a deliberate intent to devalue the importance of the privacy of a dwelling place."

Chief Justice Roberts responded in turn. The majority had mischaracterized his position on privacy and "seems a bit overwrought," he said in a footnote.

In a concluding paragraph of his dissent, he said: "The majority reminds us, in high tones, that a man's home is his castle, but even under the majority's rule, it is not his castle if he happens to be absent, asleep in the keep or otherwise engaged when the constable arrives at the gate. Then it is his co-owner's castle."

Justice Souter also attacked as a "red herring" a warning by Chief Justice Roberts that the rule the court was adopting would hamper the ability of the police to protect victims of domestic violence.

Justice Souter said the law was clear on the right of the police, despite any objection, to enter a home to protect a crime victim. But that issue "has nothing to do with the question in this case," he said.

The discussion by Chief Justice Roberts of the implications for domestic violence cases might have been an effort to win, or a failed effort to hold, the vote of Justice Breyer.

When the case was argued on Nov. 8, Justice Breyer raised the issue of domestic abuse. Addressing Mr. Randolph's lawyer, Thomas C. Goldstein, he said, "I haven't seen anything on your side that wouldn't prevent many cases of domestic spousal abuse from being investigated." He added, "Quite frankly, it bothers me a lot."

In his concurring opinion on Wednesday, Justice Breyer noted that in this case, the police were searching "solely for evidence," and domestic abuse was not at issue. While he pronounced himself satisfied by "the case-specific nature of the court's holding," he said the outcome might well be different in the context of domestic abuse, in which police entry even over one spouse's objection could be reasonable.

This case was the oldest undecided case on the court's docket, and it is likely that Justice Breyer's vote was in play until the final stages. One indication was Chief Justice Roberts's reference in his opinion to Justice Breyer's having joined "what becomes the majority opinion," an odd present-tense locution suggesting that the outcome had once been otherwise.

The case also produced dueling opinions by Justice Stevens, concurring, and Justice Scalia, in dissent, over how a true believer in interpreting the Constitution in light of the framers' original understanding would have resolved the issue. There was a tone more of banter than anger to this exchange between the old adversaries, as if after some months of forced and unaccustomed unanimity, they were now free once again to acknowledge their differences.

Roberts Dissent Reveals Strain Beneath Court's Placid Surface,
NYT, 23.3.2006,
http://www.nytimes.com/2006/03/23/politics/23scotus.html

Court allows $50 mln award

vs Philip Morris

Mon Mar 20, 2006 10:26 AM ET
Reuters
By James Vicini

WASHINGTON (Reuters) - The U.S. Supreme Court declined to review on Monday a $50 million punitive damages award against Altria Group Inc's Philip Morris unit in the case of a longtime smoker who was diagnosed with lung cancer and then died.

The lawsuit against the tobacco company had been filed in California state court by Richard Boeken, who said he smoked two packs of Marlboro cigarettes a day for decades. Diagnosed with lung cancer in 1999, he was 57 when he died in 2002.

A jury in Los Angeles awarded Boeken a record $3 billion in punitive damages and $5.5 million in compensatory damages. The trial judge then reduced the punitive damages award to $100 million.

A California appeals court last year further reduced the punitive damages award to $50 million, and both Philip Morris and Boeken's widow appealed to the Supreme Court.

Philip Morris told the high court it cannot be held liable under state law for failing to provide additional warnings about the dangers of smoking, beyond what is required under the federally mandated warning labels on cigarette packs.

The Federal Cigarette Labeling and Advertising Act pre-empts such state law claims, it said. The lawsuit cited the product liability theory, known as the "consumer expectations test," that cigarettes were more dangerous than consumers realized, despite the warnings on each pack.

Philip Morris also said the $50 million punitive damages award to a single plaintiff was "unconstitutionally excessive." The company's appeal was supported by the Chamber of Commerce business group.

Attorneys for Boeken's widow agreed the Supreme Court should review the punitive damages judgment because of conflicting lower court rulings on what constitutes "gross excessiveness." The federal pre-emption issue may also be worthy of Supreme Court review, they said.

Her attorneys said in a separate appeal that the Supreme Court should clarify that a defendant's illicit profit and misconduct represented an important factor in reviewing awards of punitive damages.

They challenged the presumption stemming from a 2003 Supreme Court ruling that punitive damages compared to compensatory damages can never exceed a 10-to-1 ratio. They said larger ratios may be necessary to deter intentional, repetitive and reprehensible misconduct.

The Supreme Court rejected both appeals without any comment or recorded dissent.

    Court allows $50 mln award vs Philip Morris, R, 20.3.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-03-20T152630Z_01_WAT005105_RTRUKOC_0_US-COURT-TOBACCO.xml

Public Comments by Justices

Veer Toward the Political

March 19, 2006
The New York Times
By ADAM LIPTAK

Speeches by Supreme Court justices are usually sleepy civics lessons studded with references to the Federalist Papers and the majesty of the law. That seems to be changing.

This month, former Justice Sandra Day O'Connor told an audience at Georgetown University that a judiciary afraid to stand up to elected officials can lead to dictatorship. Last month, speaking in South Africa, Justice Ruth Bader Ginsburg said that the courts were a safeguard "against oppressive government and stirred-up majorities."

Justice Ginsburg also revealed that she and Justice O'Connor, who retired in January, had been the targets of an Internet death threat over their practice of citing the decisions of foreign courts in their rulings.

The justices' speeches were mostly a reaction, students of the court said, to attacks on judicial independence in Congress. "The volume is being turned up on both sides," said David J. Garrow, the legal historian, "both in the attacks on the court and in the justices' response."

The recent speeches, said Kermit L. Hall, the editor of "The Oxford Companion to the United States Supreme Court," may be breaking ground in judicial decorum.

"What's going on," Mr. Hall said, "is that Ginsburg and O'Connor are using their position — and it is striking that both are women — to state a position in favor of the judiciary that comes real, real close to taking a political position."

The O'Connor and Ginsburg speeches, variations on basic speeches they had given often before, were sharper and more topical than what many expect from Supreme Court justices. Justice O'Connor's Georgetown speech was apparently neither recorded nor transcribed, but Nina Totenberg, the legal affairs correspondent for National Public Radio, reported on it the next day.

In the speech, Justice O'Connor seemed to address comments made by two Texas Republicans, Representative Tom DeLay and Senator John Cornyn, concerning Terry Schiavo, a brain-damaged woman whose feeding tube was removed by court order.

Ms. Schiavo was the subject of a confrontation between Congress and the courts last year. Congress lost.

Senator Cornyn said afterward that political rulings from judges had fueled public frustration. "It builds up and builds up and builds up to the point where some people engage in violence," he said. "Certainly without any justification, but a concern that I have."

Justice O'Connor said that interference with an independent judiciary had allowed dictatorship to flourish in developing and Communist countries, Ms. Totenberg reported. "It takes a lot of degeneration before a country falls into dictatorship," Justice O'Connor said, according to Ms. Totenberg, "but we should avoid these ends by avoiding these beginnings."

Justice Ginsburg's speech, posted on the Supreme Court's Web site, focused on the citation of foreign law. She said that no one on the court contended that foreign decisions were binding precedents, only that they could illuminate common problems. Judges consult and cite all sorts of materials in making decisions, and she said she was perplexed that one category of potentially valuable information should be out of bounds.

She also discussed what she called "dynamic versus static, frozen-in-time constitutional interpretation," suggesting a preference for the former.

Mr. Hall, who is also the president of the State University of New York at Albany, said Justice Ginsburg's statements were "really quite remarkable in the history of the court."

"She is pressing for a view of the Constitution that is quite cosmopolitan, and she is using an out-of-country venue to make her point," Mr. Hall said.

Justice Ginsburg's comments may have been a response to Justice Antonin Scalia, who, in opinions and speeches, has rejected the view that the Constitution is a living document.

"You would have to be an idiot to believe that," Justice Scalia said in a speech in Puerto Rico last month, The Associated Press reported. "The Constitution is not a living organism. It is a legal document. It says some things and doesn't say others."

The dueling speeches, Mr. Hall said, represented "two Supreme Court justices arguing with each other off the bench."

Justice Ginsburg seemed to blame stalled Congressional measures that would have prohibited the citation of foreign law for the Internet death threat.

"Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support," she said. "And one not-so-small concern — they fuel the irrational fringe."

The threat, passed to the justices by a court security officer, was a February 2005 posting on an Internet chat site addressing unnamed "commandos."

"Here is your first patriotic assignment," the message said. "Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use foreign laws and rulings to decide how to rule on American cases. This is a huge threat to our Republic and constitutional freedom. If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week."

Mr. Garrow said the threat was all the stranger because the stakes were trivial. "The odd thing is," he said, "that Justices Ginsburg and O'Connor are being attacked for their footnoting practices."

The death threat went nowhere, Justice Ginsburg said last month. Justice O'Connor, who will turn 76 this month, "remains alive and well," Justice Ginsburg, 73, said.

"As for me," she added, "you can judge for yourself."

    Public Comments by Justices Veer Toward the Political, NYT, 19.3.2006, http://www.nytimes.com/2006/03/19/politics/19scotus.html

Supreme Court

Upholds Campus Military Recruiting

March 6, 2006
The New York Times
By DAVID STOUT

WASHINGTON, March 6 — The Supreme Court ruled today, 8 to 0, that colleges and universities that accept federal money must allow military recruiters on campus, even if people in the academic community deplore the Pentagon's "don't ask, don't tell" policy on gay people.

Ending a decade-long battle in favor of the Defense Department, the court rejected the argument of law school faculty members that being forced to associate with military recruiters violated their First Amendment rights to free speech and association.

"Law schools 'associate' with military recruiters in the sense that they interact with them, but recruiters are not part of the school," Chief Justice John G. Roberts Jr. wrote for the court. "Students and faculty are free to associate to voice their disapproval of the military's message."

At issue in the case of Rumsfeld v. Forum for Academic and Institutional Rights, or FAIR, No. 04-1152, is 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.

The American Association of Law Schools has long required its members to insist that prospective employers agree to a policy of nondiscrimination on grounds that include sexual orientation. The association's stand set the stage for a conflict with the military and its "don't ask, don't tell" policy.

Some law schools tried to comply with the Solomon Amendment by half-measures, relegating military recruiters to off-campus locations. But Congress specified in 2004 that mere access for military recruiters is not enough; it demanded equal access.

Although law schools became the centers of campus resistance, the entire colleges and universities stood to lose if they ran afoul of the Solomon Amendment. The federal money at stake comes from a wide range of agencies and for a wide variety of uses. Funds for student financial assistance are not covered.

When the case was argued before the Supreme Court on Dec. 6, Chief Justice Roberts zeroed in on the universities' apparent desire to have it both ways — to show disapproval of the military's treatment of gay people but still leave the federal money spigots open.

"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," the chief justice told a university lawyer.

In his opinion today, Chief Justice Roberts soundly rejected FAIR's assertion that the Solomon Amendment infringed on First Amendment free-speech rights.

"The Solomon Amendment neither limits what law schools may say nor requires them to say anything," he wrote. "Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds."

The Solomon Amendment pertains to conduct more than to speech, the chief justice wrote: "It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say."

Chief Justice Roberts rejected the law schools' contention that teachers and students might equate the granting of access to recruiters to an endorsement of the military's views. He noted that previous Supreme Court rulings have recognized that high school students can appreciate the difference between speech that a school sponsors and speech that a school merely permits because it is required to do so under equal-access policies. "Surely students have not lost that ability by the time they get to law school," he wrote.

Today's decision, in which Justice Samuel A. Alito Jr. took no part because he joined the court after the case was heard, overturned a ruling by the United States Court of Appeals for the Third Circuit, which had found in favor of FAIR.

Representative Gerald B.H. Solomon, a conservative Republican from upstate New York who was a tireless supporter of the military in his 20 years in the House, would surely have been pleased at today's outcome.

A former marine, Mr. Solomon led crusades to punish flag burners and draft dodgers. He was also an ardent opponent of gun control, so much so that in 1996 he challenged Representative Patrick Kennedy of Rhode Island to "step outside" to settle a dispute over a proposal to outlaw assault weapons. Mr. Solomon, who retired in 1998, died at his Glens Falls home in 2001 at the age of 71.

    Supreme Court Upholds Campus Military Recruiting, NYT, 6.3.2006, http://www.nytimes.com/2006/03/06/politics/06cnd-scotus.html

    Related > RUMSFELD, SECRETARY OF DEFENSE, et al. v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC., et al., certiorari to the united states court of appeals for the third circuit, No. 04-1152., Argued December 6, 2005--Decided March 6, 2006, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1152&friend=nytimes

Supreme Court

Rejects Judicial Ethics Case

March 6, 2006
By THE ASSOCIATED PRESS
Filed at 12:57 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court refused Monday to consider whether a top judge in Illinois improperly voted to throw out a $1 billion judgment against State Farm after accepting campaign donations from company lawyers and executives.

The case raised an important question about judicial ethics: does the Constitution entitle average citizens a day in court before an impartial judge?

It was filed on behalf of customers of Bloomington, Ill.-based State Farm Mutual Automobile Insurance Co., the nation's largest insurer. The customers won a class-action lawsuit accusing the company of fraud for refusing to pay for top-quality replacement parts on damaged cars.

Illinois Supreme Court Justice Lloyd Karmeier was a deciding vote in a decision to throw out the entire judgment last year. He had been asked to stay out of the case.

A dozen public interest groups had pressed the Supreme Court to declare that people have a due process right to an unbiased judge, pointing out that 30 states will hold supreme court elections this year and money may taint those contests.

Lawyers for groups such as Common Cause told justices that high-dollar judicial races ''engender an appearance of corruption that critically threatens the very foundation of the courts, and the rights of the litigants who appear in them.''

Karmeier, a Republican, and his Democratic opponent spent, combined, more than $9 million in 2004 in what experts called the most expensive judge race in American history.

After taking the bench he sided with State Farm, and separately voted to throw out a $10 billion fraud judgment against Philip Morris over the marketing of its ''light'' cigarettes.

Justices were told that Karmeier directly received $350,000 in State Farm-related donations.

But lawyers for State Farm flatly denied that and said the company itself gave no money to Karmeier. ''This court should reject (their) attempt to salvage some part of their case by improperly impugning the integrity of Justice Karmeier and the Illinois Supreme Court,'' lead lawyer Sheila Birnbaum said in a filing.

The Illinois Supreme Court has been split on whether to overturn the verdict entirely, and Karmeier cast the deciding vote.

Separately, public interest groups have asked a state board that looks into allegations of judicial misconduct to investigate Karmeier.

The case is Avery v. State Farm Mutual Automobile Insurance Co., 05-842.

------

On the Net:

Supreme Court: www.supremecourtus.gov

    Supreme Court Rejects Judicial Ethics Case, NYT, 6.3.2006, http://www.nytimes.com/aponline/national/AP-Scotus-State-Farm.html?_r=1&oref=slogin

Court Sidesteps Grandparents' Rights Case

March 6, 2006
By THE ASSOCIATED PRESS
Filed at 10:32 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court refused Monday to consider making it harder for grandparents to win visitation rights, rejecting an appeal from a dad who went to jail to fight a court-ordered visitation.

Brian Collier had asked the justices to strike down Ohio visitation laws, on grounds that they interfere with parents' rights to raise their families free from government interference.

Collier's daughter is 7 and for most of her life has been the center of an emotional legal dispute in the small Ohio town of Wooster, about 30 miles southwest of Akron.

The girl's mother, Renee Harrold, was diagnosed with cancer while pregnant and decided not to have treatment until after the child was born, according to court records. The woman died in 1999, when Brittany Renee was 2.

Collier, who never married the mother, later won custody of his daughter but refused to let the girl see her maternal grandparents.

The Ohio Supreme Court ruled that the girl should be allowed to maintain contact with the grandparents who had raised her until she was 5 years old.

Collier served a brief jail sentence in 2003 for contempt of court, for blocking the visitation. He maintains that the grandparents, Gary and Carol Harrold, are trying to turn his daughter against him.

The Supreme Court has dealt before with grandparent visitation, in a fractured 2000 ruling that said states must be careful in helping grandparents and others with close ties to children win the right to see them regularly against parents' wishes.

The decision was written by Justice Sandra Day O'Connor, who retired earlier this year.

Collier's lawyer, Lawrence Whitney of Akron, Ohio, told justices that they should revisit to the issue, to bolster parents' rights.

''Any statute allowing any non-parent visitation rights in contravention of a fit parent's wishes is repugnant to that parent's constitutional rights,'' he wrote in the appeal.

The grandparents were granted visitation in part under an Ohio law that allows visits when the parent of a child has died.

The case is Collier v. Harrold, 05-871.

    Court Sidesteps Grandparents' Rights Case, NYT, 6.3.2006, http://www.nytimes.com/aponline/national/AP-Scotus-Grandparents.html

States appeal to Supreme court

on CO2 car emissions

Fri Mar 3, 2006
1:57 PM ET
Reuters
By Timothy Gardner

NEW YORK (Reuters) - A dozen U.S. states appealed to the Supreme Court on Friday on a case that seeks to force the U.S. government to regulate carbon dioxide emissions from cars and trucks, an environmental group said.

The states, three cities including New York, and several green groups had sued the U.S. Environmental Protection Agency for failing to regulate the car emissions most scientists link to global warming.

Last August the full bench of the U.S. Federal Court of Appeals in Washington, D.C., the nation's second-highest court, denied a request to hear the case in a 4 to 3 decision.

Earlier, that court had ruled 2 to 1 that the U.S. government does not have to regulate carbon dioxide emissions spewed from cars and trucks.

The court did not decide central questions on whether EPA has the authority to regulate global warming pollution, or the agency's claim that carbon dioxide is not a pollutant.

The EPA had said in 2003 that global warming has risks, but it could not regulate greenhouse gas emissions because Congress had not granted it authority to do so under the federal Clean Air Act.

Friday's petition claims the EPA unjustifiably concluded that the Clean Air Act does not provide it authority to regulate greenhouse gas emissions, according to John Stanton, Vice President for the National Environmental Trust.

The petition says a review by the Supreme Court "is necessary to prevent the (EPA) from continuing to claim that a decision of this Court prevents it from taking regulatory action to address climate change," according to Stanton.

Passenger cars, pickup trucks and SUVs account for 20 percent of U.S. carbon dioxide emissions, with power plants responsible for 40 percent.

Environmental groups said the court's decision allows states such as California to formulate their own policies for controlling CO2 from vehicles.

California and New York have proposed rules to reduce greenhouse gas emissions from vehicles.

Automobile manufacturers oppose any rules to cut CO2 emissions, claiming they would make cars smaller, lighter and less powerful, which they say, would strip cars of attributes consumers demand.

President George W. Bush pulled the United States from the international Kyoto Protocol that aims to reduce global warming emissions mostly among industrialized countries, saying the treaty would hurt the U.S. economy. He favors voluntary methods of cutting emissions.

The EPA said this week U.S. greenhouse emissions rose 1.7 percent in 2004, a higher rate than during each of the previous two years.

    States appeal to Supreme court on CO2 car emissions, R, 3.3.2006, http://today.reuters.com/news/articlenews.aspx?type=domesticNews&storyid=2006-03-03T185644Z_01_N03222730_RTRUKOC_0_US-ENVIRONMENT-WARMING-COURT.xml

Vermont Campaign Limits

Get Cool Reception at Court

March 1, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Feb. 28 — The Supreme Court displayed little appetite on Tuesday for making basic changes in its approach to campaign finance law, under which the government may place limits on political contributions but not on a candidate's spending.

Vermont's aggressive effort to drive much private money out of politics, through a law it enacted in 1997 that set tight limits on both contributions and expenditures, appeared unlikely to withstand the court's scrutiny after an argument that included a low-key but withering cross-examination by Chief Justice John G. Roberts Jr. of Vermont's attorney general, William H. Sorrell.

The chief justice challenged the attorney general's assertion that money was a corrupting influence on Vermont's political system, the state's main rationale for its law. "How many prosecutions for political corruption have you brought?" he asked the state official.

"Not any," Mr. Sorrell replied.

"Do you think corruption in Vermont is a serious problem?"

"It is," the attorney general replied, noting that polls showed that most state residents thought corporations and wealthy individuals exerted an undue influence in the state.

The chief justice persisted. "Would you describe your state as clean or corrupt?" he asked.

"We have got a problem in Vermont," Mr. Sorrell repeated.

The chief justice pressed further. If voters think "someone has been bought," he said, "I assume they act accordingly" at the next election and throw the incumbent out.

He also challenged a line from the attorney general's 50-page brief, an assertion that donations from special-interest groups "often determine what positions candidates and officials take on issues." Could the attorney general provide an example of such an issue, Chief Justice Roberts asked. Mr. Sorrell could not, eventually conceding that "influence" would have been a better word than "determine."

By the end of the argument, it appeared clear that Vermont's spending limits would fall, and that its contribution limits, the lowest in the country, were hanging by a thread.

Justice Stephen G. Breyer said he was concerned that the limits, $400 over a two-year election cycle to candidates for statewide office down to $200 for the state's House, were so low as to "give incumbents a tremendous advantage" and "really shut off the possibility of a challenge" by a candidate who had to raise and spend more money to make an impact. Political parties face the same limits on contributions to their own candidates.

On the expenditure side, the limits go from $300,000 over a two-year cycle for a governor's race down to $2,000 for a seat in the House. The law makes no adjustments for candidates who have to run in a primary in addition to the general election. Incumbents are held to 85 percent or 90 percent of what a challenger may spend, depending on the office.

"I'd like to know why the limits are not far too low," Justice Breyer said to Mr. Sorrell.

The attorney general replied that the law's limits were sufficient, with rare exceptions, to cover the unusually low cost of campaigning in Vermont, where three 30-second spots on a Burlington cable television station can be bought for $45. Legislative districts have only 4,000 residents and much campaigning is door-to-door, he said.

"You're going to have outliers" for whom the rules may be a problem, Mr. Sorrell said, "but we have a core constitutional interest in trying to increase the integrity of our campaigns."

Six years ago, the court upheld Missouri's contribution limit of $1,075 against the argument that it did not permit candidates to raise enough money to run effective campaigns. Justice Breyer voted with the majority but said that the question was close and that any lower limit might be too protective of incumbents.

A second lawyer, Brenda Wright, also argued in defense of the law, representing a coalition of Vermont residents and organizations. Lack of proof of the corrupting role of money should not be held against the law, Ms. Wright said, because serious incidents of money buying "undue influence" typically do not ever become public.

Justice Samuel A. Alito Jr. asked Ms. Wright whether candidates could run effective campaigns with the contribution limits in place, but without expenditure limits. Yes, she replied. That is, in fact, the system that exists in Vermont today, under lower courts' rulings in this case, Randall v. Sorrell, No. 04-1528.

The Federal District Court in Burlington upheld the contribution limits but struck down the spending limits under the Supreme Court's leading precedent on the subject, Buckley v. Valeo, from 1976. The United States Court of Appeals for the Second Circuit, which sits in New York and covers Vermont, affirmed on the contribution limits. Its approach to the spending limits was more complex.

The appeals court panel held by a 2-to-1 vote that the Buckley precedent was not a complete bar to Vermont's ability to defend its spending limits. The state had demonstrated a "compelling state interest" in using the limits to combat corruption as well as to relieve officeholders of the burden of continual fund-raising, the appeals court said. But rather than let the spending limits take effect, it then sent the case back to the district court to see whether alternatives, like public financing, might achieve the same result without coming so close to the constitutional line.

James Bopp Jr., arguing for the challengers to the law, a coalition that includes the Vermont Right-to-Life Committee, the Vermont Republican Party and the American Civil Liberties Union, said the appeals court's ruling on the spending limits was incorrect as a matter of law. There was no point in permitting the case to go back to the district court, Mr. Bopp said.

Asked by several justices whether any set of circumstances could justify spending limits, Mr. Bopp said that while he would not rule out a justification as a theoretical matter, he could not think of one that would pass constitutional muster. He said the First Amendment demanded that candidates "be allowed freely to express themselves."

Mr. Bopp said that "a general cynicism about politics and government has existed since the first colonists." That was what led to the American system of checks and balances, he added. But he said the definition of corruption invoked to justify the Vermont law was far too broad.

"As long as Vermont has periodic elections, incumbents will look to the next election" and to some extent tailor their behavior accordingly, he said, adding that "if that's a definition of corruption, it's sufficient to abolish elections generally."

Mr. Bopp said the Vermont limits were too low to permit meaningful campaigns, amounting to "an unprecedented restriction on speech."

Among his allies on the court was Justice Anthony M. Kennedy. In past opinions, he has expressed serious doubts about limits about both spending and contributions, suggesting reliance on public disclosure instead.

"Let's assume that some members of the court simply accept the proposition that money buys access," Justice Kennedy said to Mr. Bopp. "It's a common-sense conclusion. I tend to think that money does buy access. But what follows from that?"

He then answered his own question. "Isn't the answer that voters can see what's going on and throw the incumbents out?"

    Vermont Campaign Limits Get Cool Reception at Court, NYT, 1.3.2006, http://www.nytimes.com/2006/03/01/politics/politicsspecial1/01campaign.html

Supreme Court Backs

Abortion Protesters

in Unanimous Ruling

February 28, 2006
By THE ASSOCIATED PRESS
Filed at 12:00 p.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court dealt a setback Tuesday to abortion clinics in a two-decade-old legal fight over anti-abortion protests, ruling that federal extortion and racketeering laws cannot be used to ban demonstrations.

The 8-0 decision ends a case that the 7th U.S. Circuit Court of Appeals had kept alive despite a 2003 ruling by the high court that lifted a nationwide injunction on anti-abortion groups led by Joseph Scheidler and others.

Anti-abortion groups brought the appeal after the appellate court sought to determine whether the injunction could be supported by charges that protesters had made threats of violence.

In Tuesday's ruling, Justice Stephen Breyer said Congress did not intend to create ''a freestanding physical violence offense'' in the federal extortion law known as the Hobbs Act.

Instead, Breyer wrote, Congress chose to address violence outside abortion clinics in 1994 by passing the Freedom of Access to Clinic Entrances Act, which set parameters for such protests.

Social activists and the AFL-CIO had sided with abortion demonstrators in arguing that lawsuits and injunctions based on the federal extortion law could be used to thwart their efforts to change public policy or agitate for better wages and working conditions.

The legal battle began in 1986, when the National Organization for Women filed a class-action suit challenging tactics used by the Pro-Life Action Network to block women from entering abortion clinics.

NOW's legal strategy was novel at the time, relying on civil provisions of the 1970 Racketeer Influenced and Corrupt Organizations Act, which was used predominantly in criminal cases against organized crime. The lawsuit also relied on the Hobbs Act, a 55-year-old law banning extortion.

A federal judge issued a nationwide injunction against the anti-abortion protesters after a Chicago jury found in 1998 that demonstrators had engaged in a pattern of racketeering by interfering with clinic operations, menacing doctors, assaulting patients and damaging clinic property.

But the Supreme Court voided the injunction in 2003, ruling that the extortion law could not be used against the protesters because they had not illegally ''obtained property'' from women seeking to enter clinics to receive abortions.

Justice Samuel Alito did not participate in the decision.

The cases are Scheidler v. NOW, 04-1244, and Operation Rescue v. NOW, 04-1352.

------

On the Net:

Supreme Court: www.supremecourtus.gov 

Supreme Court Backs Abortion Protesters in Unanimous Ruling, NYT, 28.2.2006, http://www.nytimes.com/aponline/national/AP-Scotus-Abortion-Protests.html

Anna Nicole Smith with her lawyer, Howard Stern,

as she arrived for her hearing today at the Supreme Court.

Chris Kleponis/Reuters        NYT        February 28, 2006

 Supreme Court to Hear Ex - Playmate's Case

NYT        28.2.2006

http://www.nytimes.com/aponline/national/AP-Scotus-Playmates-Battle.html?_r=1&oref=slogin

Supreme Court

to Hear Ex - Playmate's Case

February 28, 2006
By THE ASSOCIATED PRESS
Filed at 10:44 a.m. ET
The New York Times

WASHINGTON (AP) -- Dressed in all black, former stripper turned weight-loss promoter Anna Nicole Smith fought her way through a throng of photographers and autograph-seekers Tuesday on her way to a Supreme Court showdown in her bid to inherit her late husband's fortune.

Smith didn't say a word and didn't sign any autographs as she and a lawyer tried to slip into a side door of the court.

With millions of dollars on the line, the legal issue, stemming from a nasty family feud over the fortune of Smith's late husband, J. Howard Marshall II, turns on whether state or federal courts have jurisdiction in the matter.

Smith, the spokeswoman for a diet product company, was awarded $474 million by a federal bankruptcy judge. That was later reduced by a federal district judge and then thrown out altogether by a federal appeals court on jurisdictional grounds.

Smith married the oil tycoon in 1994 when he was 89 and she was a 26-year-old topless dancer in Texas. Marshall died the following year. His fortune has been estimated at as much as $1.6 billion.

The high court was hearing arguments in the case, and the eventual ruling will determine whether Smith gets another chance at part of Marshall's estate.

The justices are dealing with a technical question: When may federal courts hear claims that involve state probate proceedings? Smith lost in Texas state courts, which found that E. Pierce Marshall was the sole heir to his father's estate.

A long line of lawyers stretched through the Supreme Court hall more than three hours before the session was to begin, and camera crews were staked out in front of the building.

About two dozen photographers scrambled to snap pictures of Smith and her attorney as they arrived at a side door of the court building. Several photographers were knocked to the ground in their zeal to get a picture of Smith, dressed in a knee-length dress, high heels and black sunglasses.

''Most people will do a double take,'' said Edward Morrison, a former Supreme Court clerk who specializes in bankruptcy law at Columbia University. ''It raises the novelty level and makes a technical issue somewhat more entertaining.''

Douglas Baird, a bankruptcy expert at the University of Chicago, said: ''I'd suspect some justices haven't the slightest idea who Anna Nicole is.''

The Bush administration is siding with Smith as a technical matter, arguing that the justices should protect federal court jurisdiction in such disputes.

Marshall showered Smith, a former Playboy model, with $6.6 million in gifts that included two homes, $2.8 million in jewelry and $700,000 in clothes, and she contends that he also promised her half his estate.

Pierce Marshall said various wills and trusts his father prepared over the years made him the only heir.

A federal court ruled in 2002 that Smith was entitled to compensatory and punitive damages because Pierce Marshall altered, destroyed and falsified documents to try to keep her from receiving money from his father's estate. He denies any wrongdoing, and that decision was thrown out.

The case is Marshall v. Marshall, 04-1544.

------

On the Net:

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

Supreme Court to Hear Ex - Playmate's Case, NYT, 28.2.2006, http://www.nytimes.com/aponline/national/AP-Scotus-Playmates-Battle.html?_r=1&oref=slogin

Supreme Court Set

to Weigh Central Election-Law Issues

February 28, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Feb. 27 — The most pressing and unsettled questions in election law are those that concern the role of money, the role of race and the role of partisanship. The Supreme Court will take up all three this week.

Hearing arguments in a campaign finance case from Vermont on Tuesday and a Congressional redistricting case from Texas on Wednesday, the justices will venture onto a shifting landscape where the controlling legal precedents are either unclear or unstable and the prospect for fundamental change looms on the horizon.

On many of the questions, the new Roberts court will almost certainly be as closely divided as was the Rehnquist court. Two years ago, for example, Justice Sandra Day O'Connor, who was succeeded last month by Justice Samuel A. Alito Jr., cast the decisive fifth vote to uphold major provisions of a new federal campaign finance law. The justices were unable during that same term to agree on a majority opinion in a case from Pennsylvania on whether the Constitution prohibits a partisan gerrymander.

While decisions in the new cases are not likely until June, the arguments this week could offer a hint of the court's direction and appetite for forging a new consensus.

Of the issues before the court, the one with the most visibility involves the Texas Democrats' challenge to the redrawn Congressional district lines that the new Republican majority in the State Legislature pushed through in 2003 at the direction of Representative Tom DeLay, the Texas Republican who was then the House majority leader.

Five incumbent Democrats whose districts were carved up were defeated for re-election. The state's 32-member Congressional delegation, which had a 17-to-15 Democratic majority from districts that a court had drawn for the 2002 election, became lopsidedly Republican: 21 Republicans and 11 Democrats.

To the Democrats, the unusual middecade redistricting was "one of the most notorious partisan power grabs in our history," as one of their briefs tells the justices. To the Republicans, it was simply payback for "an egregious Democratic gerrymander from the 1990's," according to the Texas Republican Party's brief.

"This case is fundamentally about democracy," R. Ted Cruz, the state's solicitor general, asserts in his brief defending the redistricting. The Bush administration, which approved the redistricting despite objections by career lawyers in the Justice Department that the new lines violated the Voting Rights Act, will also argue on the state's behalf.

A decision upholding the new district lines, issued last June by a special three-judge Federal District Court in Austin, generated seven appeals, of which the Supreme Court agreed to hear four. While each appeal has a separate name, the eventual ruling will be known by the name of the one that was docketed first, League of United Latin American Citizens v. Perry, No. 05-204.

Two years ago, when the Supreme Court narrowly upheld a Congressional districting plan in Pennsylvania that Democrats had attacked as a partisan gerrymander, the justices could not even agree on whether such a charge was properly the business of the courts. Four said it was not, and four said it was but could not agree on a test. In the middle was Justice Anthony M. Kennedy, who voted to uphold the districts but said he might join the dissenters the next time if he was persuaded that there was a test that judges could apply to distinguish permissible from impermissible partisanship.

To satisfy Justice Kennedy, the Texas Democrats have come up with a test, proposing that "an unnecessary redrawing of district lines designed solely to replace representatives from one party with representatives from another" should be seen as serving "no legitimate governmental purpose" and therefore as unconstitutional.

While this aspect of the Texas case has received the most attention, the case also presents questions of minority voting rights, raised by lawyers for black and Mexican-American voters, that have important implications for applying the 40-year-old Voting Rights Act in an era when multiethnic coalitions, rather than a single group, are increasingly in a position to determine the outcome of elections.

Such a coalition of black and Latino voters in the Dallas-Fort Worth area helped send Martin Frost, an Anglo Democrat, to Congress for 13 terms. The district was dismantled in the 2003 redistricting, and Mr. Frost, running against another incumbent, was defeated.

One question before the justices is whether black voters, accounting for less than one-quarter of the district's voting-age population, can challenge the new lines under Section 2 of the Voting Rights Act, which guarantees minorities the right to "participate in the political process and to elect representatives of their choice" to no less a degree than "other members of the electorate."

The Federal District Court held that lacking a majority electorate, the black voters were not entitled to invoke Section 2. The court declined to give legal significance to the existence of a "coalition" or "crossover" district in which a minority group can leverage its numbers, through active participation in the primary, to exercise effective control over the outcome.

This is a thorny issue in voting rights law, on which the lower courts have disagreed and the Supreme Court has issued conflicting signals. The justices have set aside two hours for argument in the Texas case, twice the usual time, indicating their interest in addressing the Voting Rights Act issues as well as the partisanship question. The Mexican American Legal Defense and Educational Fund will argue that the 2003 plan violated the Voting Rights Act by decreasing from seven to six the number of districts in South Texas in which Latino voters form an effective majority.

The Vermont campaign finance case, Randall v. Sorrell, No. 04-1528, tests the court's current understanding of its watershed ruling 30 years ago in Buckley v. Valeo, which upheld limits on political contributions but determined that campaign spending was a form of political speech that the First Amendment did not permit the government to curtail.

A majority of the current court has expressed disagreement, or at least discomfort, with one or another aspect of that ruling. Justice Kennedy has called it a "halfway house" that does not provide a coherent framework for addressing the role of money in politics.

But a federal appeals court panel in New York, ruling last year in the Vermont case, went further. A 2-to-1 majority said Buckley v. Valeo had not, in fact, completely shut the door on regulating campaign spending. The appeals court found two justifications sufficiently "compelling" to overcome constitutional objections: deterring corruption, and relieving politicians of the distractions of nonstop fund-raising.

Vermont's spending limits, ranging from $300,000 per election cycle for a governor's race down to $2,000 for a seat in the Vermont House, may well be constitutional, the appeals court said while sending the case back to the Federal District Court in Burlington, Vt., for an examination of whether there were other means, less close to the line, to accomplish the same result.

The Supreme Court agreed to hear challenges to that decision, brought by the Vermont Republican Party, the American Civil Liberties Union and others, without waiting for the lower court proceedings to conclude. Also in the case for the justices' review are the state's very low limits on political contributions, $400 per cycle for statewide offices, and tight restrictions on the ability of political parties to spend money on behalf of their candidates.

Many of the participants in the Vermont case are repeat players from the court's last campaign finance case, two years ago. Senator Mitch McConnell, the Kentucky Republican who was one of the main challengers to the federal campaign finance law in the 2003 case, has filed a brief against the Vermont limits, as has organized labor, represented by the A.F.L.-C.I.O., which also opposed the federal law. And, as in the last case, a group of former leaders of the American Civil Liberties Union have filed a brief in support of Vermont, disavowing the organization's official position before the court that the spending limits are unconstitutional.

The divergence of views, and lack of agreed-upon premises, are striking. Does the Vermont law favor incumbents or hurt them? Will it enhance democracy or disable it? Is Buckley v. Valeo still good law?

Only the justices can answer that last question, and the answer, on the eve of the argument, is far from evident.

    Supreme Court Set to Weigh Central Election-Law Issues, NYT, 28.2.2006, http://www.nytimes.com/2006/02/28/politics/politicsspecial1/28scotus.html

Environmental Law

Justices Debate Federal Role

in Regulating Water Pollution

February 22, 2006
The New York Times
By FELICITY BARRINGER

WASHINGTON, Feb. 21 — Supreme Court justices questioned the limits of the federal government to control pollution under the Clean Water Act in a series of cut-and-thrust exchanges on Tuesday.

Justice David H. Souter asked M. Reed Hopper, the lawyer in one of the twin cases before the court, why Congress would regulate navigable rivers without extending that same authority to the waterways and wetlands that feed them.

Following this logic, Justice Souter said, "All you've got to do is dump the pollutant far enough up the water system to get away scot-free."

Mr. Hopper contended that "Congress did not intend to regulate the entire tributary system" that feeds into the country's large rivers.

He represents John A. Rapanos, a Michigan developer who failed to get a federal permit before filling his wetlands with sand and who is appealing a civil judgment against him. Mr. Rapanos's case involves three wetlands, one of which is 20 miles from the nearest navigable waterway but adjacent to a drainage ditch whose contents eventually flow into that river.

A case being argued simultaneously involves a Michigan wetland, owned by Keith and June Carabell, that is separated from navigable water on the surface by an earthen berm and underneath by impermeable clay soils.

In questioning Mr. Hopper, Justice Ruth Bader Ginsburg asked if the wetland adjacent to the river counted as falling under the federal mandate, "Why not a stream that goes right into it? What sense does the distinction make?"

Mr. Hopper said that a strict reading of the 1972 legislation showed that Congress gave specific authority to regulate only navigable waters — and, after a 1985 Supreme Court ruling, any neighboring wetlands.

When the solicitor general, Paul D. Clement, rose to make his argument about the extent of federal jurisdiction, he was met with a volley of barbed questions, most from Justice Antonin Scalia. Justice Scalia said that under the government's logic, "a storm drain, even when not filled with water, is a tributary." Minutes later, he added, "I suggest it's very absurd to call that 'waters of the United States.' It's a drainage ditch."

Justice Anthony M. Kennedy and Chief Justice John G. Roberts Jr. also pondered how to determine whether a large waterway clearly covered by the act had a "significant nexus" to a smaller tributary, which would place the smaller waterway under federal, not state, regulation.

Chief Justice Roberts asked whether a wetland that contributed "one drop a year" to a tributary of a navigable waterway should be subjected to regulation. The solicitor general said it would. Justice Scalia followed up, saying, "I don't know how a storm drain is a water of the United States."

A few minutes later, Chief Justice Roberts told Mr. Clement, "You put a lot of weight on the tributary approach," and then added, "For those of us having trouble with the concept of 'tributary,' you don't give us much to fall back on." Mr. Clement replied by citing a major section of the law, saying it was "the clearest textual indication that Congress meant to regulate something" beyond the scope of navigable waters.

The arguments marked the first appearance on the bench of Justice Samuel A. Alito Jr., the junior justice, who asked a single question.

    Justices Debate Federal Role in Regulating Water Pollution, NYT, 22.2.2006, http://www.nytimes.com/2006/02/22/politics/politicsspecial1/22enviro.html

Supreme Court Roundup

Sect Allowed

to Import Its Hallucinogenic Tea

February 22, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Feb. 21 — A unanimous Supreme Court decision on Tuesday gave a small religious sect the right to keep importing a hallucinogenic tea, central to its ritual observance, that the government wants to ban as a controlled substance under federal narcotics law.

With an opinion by Chief Justice John G. Roberts Jr., the decision was one of the most significant applications of the Religious Freedom Restoration Act, a 13-year-old federal statute that requires the government to meet a demanding test before it can enforce a law in a way that creates a substantial obstacle to religious observance.

The government failed to carry its burden under the statute, Chief Justice Roberts said in an opinion that not only rejected the administration's specific arguments but also dismantled its theory of the case. The chief justice said the government's "bold argument" that the Controlled Substances Act, the basic federal narcotics law, "simply admits of no exceptions" could not be reconciled either with the religious freedom law or with administrative practice under the act itself.

For the past 35 years, he noted, the government has permitted American Indians to use peyote in their religious rituals despite the fact that peyote and its active ingredient, mescaline, are banned for general use under the Controlled Substances Act and have been found by Congress to be dangerous substances with a high potential for abuse.

Referring to the sect at issue in this case by its initials, U.D.V. (the full name is O Centro Espirita Beneficente União Do Vegetal), Chief Justice Roberts said that if peyote was permitted despite those findings "for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 of so American members of the U.D.V. who want to practice theirs."

To the government's argument that the "unique relationship" between the United States and Indian tribes justified the different treatment, the chief justice replied that "nothing about the unique political status of the tribes makes their members immune from the health risks" or other problems the government has attributed to the use of banned narcotics.

The tea, known as hoasca, is made from two plants found only in the Amazon rain forest. Its active ingredient is dimethyltryptamine, usually referred to as DMT.

The 8-to-0 decision, with Justice Samuel A. Alito Jr. not participating because he was not on the court when the case was argued Nov. 1, affirmed a preliminary injunction that two lower federal courts had granted to block further government seizures of the tea.

Followers of the church, which is based in Brazil, sued the government under the Religious Freedom Restoration Act in 1999 after customs agents seized a shipment of the tea bound for the group's American headquarters in New Mexico.

Both the federal district court in Albuquerque and the United States Court of Appeals for the 10th Circuit, in Denver, agreed that the group's 130 members were entitled to the preliminary injunction so they could maintain access to the tea while awaiting a full trial on the merits of their case. The administration then appealed to the Supreme Court.

In a technical sense, the government is still entitled to try to make its case at trial because the preliminary injunction was all that was before the Supreme Court in the case, Gonzales v. O Centro Espirita Beneficente União Do Vegetal, No. 04-1084. But the court's rejection of the government's position was so conclusive that the chance of a different outcome after a trial appears remote at best.

In his second Supreme Court opinion, Chief Justice Roberts employed a jargon-free, almost conversational style, using only two footnotes in the opinion's 19 pages. For example, he wrote at one point: "The government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions."

He then went on to say that the very point of the Religious Freedom Restoration Act was to require consideration, on a case-by-case basis, of claims to religious-based exemptions from laws of general applicability.

To the government's argument that judges should not devise exceptions, Chief Justice Roberts said that the statute "plainly contemplates that courts would recognize exceptions — that is how the law works."

In a 1998 decision, the court ruled on the grounds of states' rights that the Religious Freedom Restoration Act could not be applied to the states. But the court has not questioned its applicability to the federal government.

There were also these developments, as the court returned from a four-week recess.

Military Commissions

The court deferred action on the administration's motion to dismiss a case challenging the constitutionality of the military commissions the government has established to try terrorism suspects now being held at the naval base at Guantánamo Bay, Cuba.

The justices agreed in November, over the administration's objections, to hear the case, Hamdan v. Rumsfeld, No. 05-184, and have scheduled arguments for March 28.

In December, Congress passed and President Bush signed the Detainee Treatment Act, sometimes referred to as the Graham Amendment, which removed from the federal courts jurisdiction to hear challenges brought by Guantánamo detainees to their confinement and treatment.

It is an open question whether that law divested the Supreme Court of jurisdiction to proceed with the Hamdan case. The administration is arguing that it did, while lawyers for Salim Ahmed Hamdan, the Yemeni who brought the case, argue that it did not.

The court said it would consider the issue as part of the March 28 argument, not before, and added 30 minutes to the one-hour argument for that purpose.

Job Discrimination

In an unsigned, unanimous opinion, the court ruled that the federal appeals court in Atlanta had adopted an incorrect standard in rejecting a racial discrimination lawsuit brought against Tyson Foods Inc. by two black employees.

The two men, Anthony Ash and John Hithon, sought promotions that went instead to two white men who, the plaintiffs maintained, were less qualified. A jury found for the plaintiffs.

The United States Court of Appeals for the 11th Circuit ruled for Tyson, finding that one of the men had not presented sufficient evidence of discrimination and that the company was entitled to a new trial in the other case.

A plaintiff could win such a case, the appeals court said, only when "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face."

In vacating this ruling, the Supreme Court said the test was "unhelpful and imprecise." Without insisting on a particular formulation, the justices told the appeals court to consider other courts' approaches.

The justices also said the appeals court was incorrect to discount a Tyson manager's use of the word "boy" as possible evidence of racial discrimination. The case was Ash v. Tyson Foods, Ind., No. 05-379.

Sentencing

The court re-entered the debate it ignited six years ago over the appropriate role for judges in criminal sentencing.

It agreed to hear a case from California on whether that state's sentencing law, which presumes that judges will issue a sentence in the middle of a stated range but permits them to go higher if they state reasons, complies with the court's recent insistence that juries make the factual findings that lead to increased sentences.

The case, Cunningham v. California, No. 05-6551, could affect thousands of sentences in that state as well as in others.

Sect Allowed to Import Its Hallucinogenic Tea, NYT, 22.2.2006, http://www.nytimes.com/2006/02/22/politics/22scotus.html

A Federal Ban

Justices to Review Federal Ban

on Disputed Abortion Method

February 22, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Feb. 21 — The Supreme Court, at full strength with Justice Samuel A. Alito Jr. on the bench for the first time, opened the next chapter in its long-running confrontation with abortion on Tuesday by agreeing to decide whether the first federal ban on a method of abortion is constitutional.

The court accepted, for argument next fall, the Bush administration's appeal of a decision invalidating the Partial-Birth Abortion Ban Act of 2003. The law makes it a crime for a doctor to perform an abortion during which a part of the fetus, either the "entire fetal head" or "any part of the fetal trunk past the navel," is outside the woman's uterus at the time the fetus is killed.

While supporters of the law maintain that this technique is used only late in pregnancy, and that the law therefore does not present an obstacle to most abortions, abortion-rights advocates say the statute's description applies to procedures used to terminate pregnancies as early as 12 or 13 weeks.

The law makes an exception for instances in which the banned technique is necessary to save a pregnant woman's life, but not for preservation of her health. Six years ago, in a 5-to-4 decision with Justice Sandra Day O'Connor in the majority, the Supreme Court found that the health exception was necessary when it overturned a similar law from Nebraska. In essence, the court will be revisiting that decision in the case it took Tuesday, with Justice Alito now filling the O'Connor seat.

In omitting a health exception, the federal law presents a direct threat to that precedent. In the federal statute, Congress included a "finding" that "partial-birth abortion is never medically indicated to preserve the health of the mother" and that "there is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures."

The four doctors who went to Federal District Court in Lincoln, Neb., to challenge the federal law, including Dr. Leroy Carhart, who had brought the earlier challenge to the Nebraska state law, disputed the Congressional findings. They said the method was safer under some conditions, and could preserve some women's fertility by avoiding such complications as punctures from bone fragments inside the uterus.

The trial judge, Richard G. Kopf, who had earlier found the Nebraska law unconstitutional, said the plaintiffs had demonstrated that the Congressional findings were "unreasonable." He declared the federal law unconstitutional in a 269-page opinion, issued in September 2004. The United States Court of Appeals for the Eighth Circuit, in St. Louis, upheld that decision last July, leading to the administration's Supreme Court appeal, Gonzales v. Carhart, No. 05-380.

Last month, two other federal appeals courts, the Second Circuit in New York and the Ninth Circuit in San Francisco, declared the statute unconstitutional in separate lawsuits. All three courts issued injunctions barring enforcement of the law.

Ever since Roe v. Wade and its companion case, Doe v. Bolton, in 1973, the court has required exceptions for health as well as life in any regulation of abortion. But the vote in the Nebraska case, Stenberg v. Carhart, was 5 to 4, with Justice Sandra Day O'Connor in the majority. It is highly likely, therefore, that her successor, Justice Alito, will be in the position to cast the deciding vote. The dissenters in the Nebraska case were Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy, along with Chief Justice William H. Rehnquist, who has since been replaced by Chief Justice John G. Roberts Jr.

After the court's announcement, groups on both sides of the abortion debate tried to attach some significance to the decision to accept the case. In fact, it would have been highly unusual for the court to turn down the appeal. A lower court's invalidation of a federal statute has an almost automatic claim on the justices' attention, even those justices who may view the decision as correct or those who may not necessarily agree in this instance with the administration's description of the case as "extraordinarily important."

The court had the administration's appeal under review since early January. It may have deferred action as a courtesy to Justice Alito, who was sworn in on Jan. 31 and participated in his first closed-door conference with the other justices last Friday.

Or, equally likely, the justices set aside the case while they finished work on a New Hampshire abortion case that also raised a question about a medical exception to an abortion regulation, in that instance a requirement that a teenage girl notify a parent and then wait 48 hours before obtaining an abortion.

In what was Justice O'Connor's final opinion before retirement, that case, Ayotte v. Planned Parenthood of Northern New England, was decided on Jan. 18. The unanimous opinion restated the court's longstanding insistence on an exception for medical emergencies but, in its list of precedents, pointedly omitted reference to the Nebraska case from six years ago.

In the administration's brief in the new case, the solicitor general, Paul D. Clement, said the appeals court should have given "substantial deference" to the Congressional findings on the lack of need for a health exception. Such deference was not at issue in the court's earlier case, he said, because that case concerned a state rather than federal law.

Representing the plaintiffs, who include Drs. William G. Fitzhugh, William H. Knorr and Jill L. Vibhakar, in addition to Dr. Carhart, the Center for Reproductive Rights told the justices in its brief that the Congressional findings were not entitled to the deference that courts usually apply when evaluating legislation.

"The facts at issue here involve the current state of medicine, physicians' testimony about patients they have cared for, medical conditions they have treated, and the impact of abortion techniques on the health of these patients," the brief said, adding that Congress does not have "a particular expertise in the area of medicine, as it does in the area of nationwide economic regulatory schemes."

The organization, based in Manhattan, was known as the Center for Reproductive Law and Policy when it represented Dr. Carhart in the earlier case.

    Justices to Review Federal Ban on Disputed Abortion Method, NYT, 22.2.2006, http://www.nytimes.com/2006/02/22/politics/politicsspecial1/22abortion.html

    Related > Partial Birth Abortion Ban Act of 2003 > http://news.findlaw.com/hdocs/docs/abortion/2003s3.html

Supreme Court

Reopens Abortion Issue

on Alito's First Day

February 21, 2006
The New York Times
By JOHN O'NEIL

The Supreme Court announced today that it will hear a challenge to a federal law outlawing a late-term abortion procedure, reopening the contentious issue on Justice Samuel A. Alito Jr.'s first day on the bench.

The law, the Partial Birth Abortion Act, was passed in 2003 but was immediately challenged in court and has never taken effect. It was ruled unconstitutional by three federal appeals courts in the last year, in rulings based on a Supreme Court decision in 2000 striking down a similar law passed in Nebraska.

In that ruling, a 5-to-4 majority that included the now-retired Justice Sandra Day O'Connor found that any abortion ban must include an exception for the health of the mother. Justice Alito was sworn in three weeks ago as Justice O'Connor's successor after a rancorous confirmation process that focused heavily on the question of abortion.

The case accepted by the court today does not involve a challenge to the core ruling that established a legal right to abortion, Roe v. Wade.

But it is certain to rekindle questions of whether the court in the post-O'Connor era will be more sympathetic to efforts to limit abortion rights.

The Planned Parenthood Federation of America, a plaintiff in the case, reacted angrily to the news. "The Supreme Court's decision to hear this case is a dangerous act of hostility aimed squarely at women's health and safety," the group's president, Cecile Richards, said in a statement.

The very name of the procedure in question has been hotly debated. Opponents call it partial-birth abortion, while abortion-rights groups prefer the name late-term abortion. Rarely used, it involves the partial delivery of a fetus during the third trimester of pregnancy.

The three appeals court that upheld lower-court rulings against the law were the Second Circuit in New York, the Ninth Circuit in San Francisco, which both issued opinions on Jan. 30th, and the Eighth Circuit in St. Louis, which ruled last July.

The Second Circuit ruling was on the narrowest of grounds, and did not strike down the act. Instead, the appeals court gave both sides 30 days to offer recommendations on how to remedy the failings in the law.

One of the three judges, Chester J. Straub, dissented. He wrote that he does not believe a woman's right to end her pregnancy under Roe v. Wade in 1973 "extends to the destruction of a child that is substantially outside her body."

The Second Circuit chief judge, John M. Walker Jr., wrote in a concurring opinion that precedent forced him to rule against the act "no matter how personally distasteful the fulfillment of that duty may be." He found that the abortion method in the ban was one that "many Americans, probably most Americans, find exceedingly offensive on moral grounds."

The Ninth Circuit, however, issued a more sweeping ruling. It found that the law ignored medical evidence that the procedure was sometimes needed to preserve the health of the mother, and was worded so vaguely that it could ban almost any method of abortion after the first trimester.

President Bill Clinton had vetoed a similar bill on the ground that it failed to include an exception for the health of the mother. But it was passed and signed by President Bush after Republicans retook control of the Senate in the 2002 Congressional elections.

    Supreme Court Reopens Abortion Issue on Alito's First Day, NYT, 21.2.2006, http://www.nytimes.com/2006/02/21/politics/21cnd-abortion.html

Justice Ginsburg goes it alone

Posted 2/18/2006 1:15 PM
USA Today
By Darlene Superville, AP Press Writer

WASHINGTON — It will be a different scene Tuesday when the black-robed justices of the Supreme Court emerge from behind a red, velvet curtain and take their seats at the mahogany bench.

Instead of two female justices, there will only be one.

Sandra Day O'Connor, the first woman to serve on the high court, retired last month. That left Ruth Bader Ginsburg as the lone female among the nine justices, a distinction she seems unhappy about.

"I would not like to be the only woman on the court," Ginsburg said in a speech last September, a practical appeal to President Bush to send up another woman.

Bush complied, but nominee Harriet Miers withdrew after Republican conservatives strongly opposed her. The president then turned to veteran federal judge Samuel Alito, who will hear his first cases as a justice when the high court meets Tuesday.

O'Connor's absence, coming after nearly a quarter-century on the court, will be felt in the weeks and months ahead by Ginsburg — and her male colleagues — as they adjust following a period of death, retirement and the addition of two new members.

"She's shy and quiet and seems chilly when you don't know her but is intensely attached to friends," said lawyer Kathleen Peratis, whom Ginsburg hired in the 1970s to succeed her at the Women's Rights Project of the American Civil Liberties Union. "I think not having a woman to play with is going to be a big gap."

O'Connor and Ginsburg indeed enjoyed a playful and, at times, competitive relationship.

They sat apart on the bench but sometimes exchanged notes and knowing glances during arguments. Both are quick, concise writers who jockeyed each term to be first to write an opinion for the court.

Ginsburg and O'Connor were soul mates in a relationship based on mutual respect and the shared experiences of the discrimination they faced entering the male-dominated legal profession in the 1950s.

Though close in age — Ginsburg is 72 and O'Connor 75 — and with birthdays less than two weeks apart in March, they are different in political ideology and personality.

O'Connor is a moderate conservative with an outgoing personality, reflecting the politician she was before becoming a judge. Ginsburg, shy and reserved, is one of the court's most liberal members.

Last term, they split on several issues.

Ginsburg voted with the majority to bar juvenile executions, let the federal government trump state medical marijuana law, and allow the confiscation of private homes to make way for new development. O'Connor dissented in all three cases.

But both have expressed concern about defendants in death penalty cases getting good legal representation, and they have come down on the same side in sex discrimination and recent religion cases.

O'Connor's absence may affect Ginsburg personally in the near term, but not professionally, associates say.

"Group dynamics obviously matter when nine people interact, and of course it's impossible to know how this change will affect the court and Justice Ginsburg," said Neil Siegel, a former Ginsburg clerk who teaches law at Duke University.

"That said, she's such a smart, experienced jurist. ... I don't see how her thinking will change just because there's a man sitting in Justice O'Connor's seat," he said.

Being the only woman or one of a few women is not new to Ginsburg; she has been there many times in her nearly 73 years.

Ginsburg was one of the few women in law school — she attended Harvard and graduated from Columbia — before becoming the first tenured female professor at Columbia Law School.

When President Carter appointed her to a federal appeals court in 1980, she again was one of the few female judges in the federal system. She marked another milestone in 1993 when President Clinton chose her to become only the second female justice.

Before donning her judge's robes, Ginsburg advocated women's rights and equality of the sexes as an ACLU lawyer, fighting against the kind of "only woman" status she now represents on the court.

"She is going to be once again pivotal for the future of women's rights," said Kate Michelman, former president of the abortion-rights group NARAL Pro-Choice America. "She's come full circle in a sense."

Michelman was referring to the rightward turn the court is expected to take with Alito's addition. He is more conservative than O'Connor, who was a deciding vote in many 5-4 cases.

Ginsburg is businesslike on the bench. She asks precise questions but is not one to pummel the sometimes nervous lawyers with them. She brings stacks of case briefs and other documents to court and refers to them during arguments.

A native of Brooklyn, N.Y., the petite Ginsburg has become one to watch because of her age, health and feeble appearance. That image is sure to be enhanced when she is seen in public with her male colleagues, some of them considerably younger and more robust.

In 1999, Ginsburg had surgery for colon cancer and had chemotherapy and radiation treatment.

Off the court, she will have plenty to keep her busy. Ginsburg is an opera devotee and frequent public speaker who likes to travel.

She once appeared in a white wig and full costume in a Washington Opera production with conservative Justice Antonin Scalia, with whom she socializes. A photo of them riding an elephant in India in 1994 is posted on a Northwestern University legal website.

Ginsburg also enjoys, as does O'Connor, Washington's social scene, where the two could well run into each other sometime over cocktails.

If not, Ginsburg can always go next door.

As a retired justice, O'Connor gets to keep an office at the Supreme Court. She recently moved from her first-floor chambers into smaller digs on the second floor, where Ginsburg has an office.

Associated Press writer Gina Holland contributed to this report.

Justice Ginsburg goes it alone, UT, 18.2.2006, http://www.usatoday.com/news/washington/2006-02-18-ginsburgh-solo_x.htm

In First Decision, Alito Votes to Block Execution

February 2, 2006
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON, Feb. 1 (AP) — Justice Samuel A. Alito Jr. cast his first vote on the Supreme Court on Wednesday, splitting with the court's conservatives in an appeal from a Missouri inmate who was to be executed at midnight.

Justice Alito joined five members of the court in blocking the execution of the inmate, Michael Taylor, who had argued that lethal injection is cruel and unusual punishment, a claim also used by two Florida death-row inmates that won stays from the Supreme Court over the past week.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas voted to lift a stay that Mr. Taylor had won from an appeals court earlier in the evening.

The court has agreed to use one of the lethal-injection cases to clarify how inmates may bring last-minute challenges to the way they will be put to death.

Earlier in the day, Justice Alito was sworn in for a second time in a ceremony at the White House, where he was lauded by President Bush as a man of "steady demeanor, careful judgment and complete integrity."

He was also was given his assignment for handling emergency appeals: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. As a result, Missouri filed with Justice Alito its request for the court to void a stay and allow Mr. Taylor's execution.

The court's split vote Wednesday night ended a frenzied day of filings. Missouri twice asked the justices to intervene and permit the execution, while Mr. Taylor's lawyers filed two more appeals seeking delays.

Reporters and witnesses had gathered at the state prison awaiting word from the court on whether to go ahead with the execution.

Mr. Taylor was convicted of killing 15-year-old Ann Harrison, who was waiting for a school bus when he and an accomplice kidnapped her in 1989. He pleaded guilty and said he was high on crack cocaine at the time.

In First Decision, Alito Votes to Block Execution, NYT, 2.2.2006, http://www.nytimes.com/2006/02/02/politics/politicsspecial1/02alito.html


 

Alito Sworn In as Justice After Senate Gives Approval

NYT        1.2.2006

http://www.nytimes.com/2006/02/01/politics/politicsspecial1/01confirm.html

Alito Sworn In as Justice

After Senate Gives Approval

February 1, 2006
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Jan. 31 — Judge Samuel A. Alito Jr. was quietly sworn in Tuesday as the 110th justice of the Supreme Court, taking the oath of office less than two hours after a sharply divided Senate voted roughly along party lines to confirm him.

His confirmation, by a vote of 58 to 42, is expected to tilt the balance of the court to the right on matters like abortion, affirmative action and the death penalty, and partisans on each side said the outcome would echo through American politics for decades.

Judge Alito and his wife, Martha-Ann, watched the vote on television in the Roosevelt Room of the White House with President Bush and his wife, Laura, and aides who had worked on the nomination.

A cheer went up in the room as the vote count passed 50, and Judge Alito and his wife proceeded to the Supreme Court for a private swearing-in. His oath was administered by Chief Justice John G. Roberts Jr., who worked with Judge Alito as a lawyer in the Reagan administration, and the two men sat with other members of the Supreme Court at for the president's State of the Union address on Tuesday night.

For Mr. Bush, the confirmations of Justice Alito, 55, and Chief Justice Roberts, 51, mean that in four months he has named two members of the court who are young enough to influence its rulings for many years.

In a statement, Mr. Bush congratulated Justice Alito, the son of an Italian immigrant, saying his "appointment to the Supreme Court is the realization of the American dream." Mr. Bush is scheduled to commemorate Justice Alito's public swearing-in with a more elaborate ceremony on Wednesday at the White House.

Justice Alito succeeds Justice Sandra Day O'Connor, the first woman on the court and its swing vote on abortion rights and other social issues. After announcing her retirement last July, Justice O'Connor postponed her departure until a successor was confirmed. She is scheduled to return to her home state by Thursday to begin teaching a class on the Supreme Court at the University of Arizona in Tucson.

The vote on the nomination was unusually close and partisan. In the last 100 years of Supreme Court confirmations, only one vote was closer: the 52-to-48 decision to confirm Justice Clarence Thomas in 1991.

In this confirmation, 54 Republicans voted for Judge Alito, and just one, Senator Lincoln Chafee of Rhode Island, voted against him. Only four Democrats — Senators Ben Nelson of Nebraska, Kent Conrad of North Dakota, Tim Johnson of South Dakota and Robert C. Byrd of West Virginia — voted for confirmation, while the other 40 Democrats and the one independent voted against it.

The senators sat at their desks as the roll was called to reflect the solemnity of the occasion, and Mr. Byrd, 88, the oldest and longest-serving member of the Senate, made his way to his desk with canes in each hand to cast the last vote with a thumbs-up gesture.

Although only four Democrats crossed party lines, the vote reflected a deep divide within the party over how hard to fight Judge Alito's confirmation. An effort by a handful of Democrats to stage a filibuster over the objection of party leaders failed on Monday, when only 25 senators voted against closing debate.

The 42 senators who voted against confirmation would have been enough to block the nomination if they had voted against closing the debate. But many Democrats were unwilling to do so because it would have drawn charges of obstructionism from Republicans, who have threatened to change Senate rules to bar filibusters on judicial nominees.

Still, Democrats vowed to make an issue of Justice Alito and Chief Justice Roberts's decisions in elections this fall and beyond. "We will be watching our two newest justices," Senator Charles E. Schumer, a New York Democrat on the Judiciary Committee and the chairman of the Democratic Senatorial Campaign Committee, said in a speech before the vote.

"Make no mistake, we will make sure the American people understand the implications of these votes today," Mr. Schumer said. "Elections may have consequences, Mr. President, but votes like these also have consequences for future elections."

Officials of liberal groups, stung by the opposition of nearly half of the Democratic caucus to a filibuster of Judge Alito's nomination, criticized the party as giving in. "Today the Senate caved," said Wade Henderson, executive director of the Leadership Conference on Civil Rights.

The groups also pledged to make the Supreme Court their rallying cry in the midterm elections this fall. "Why did we lose?" said an e-mail message from Naral Pro-Choice America to its supporters. "One word sums it up: numbers."

The message continued, "We don't have the majority in the Senate."

Karen Pearl, interim president of Planned Parenthood and its political action fund, said many abortion-rights supporters had taken the Supreme Court for granted. "This nomination has moved the whole issue of reproductive health and freedoms much higher on voters' agenda, and I think they will remember this vote," Ms. Pearl said.

Conservatives, who have campaigned for decades against the court's decisions on abortion rights and the government's support for religion, celebrated Justice Alito's confirmation as a historic victory. The Family Research Council, a conservative Christian group, called the vote "a turning point for our nation."

"This is obviously a great day for us," said James C. Dobson, founder of the council and Focus on the Family. "We have not only been working toward this day, but praying for it for 20 years. There were times when it looked like we would never see a more conservative philosophy on the Supreme Court, and that makes today's development all the sweeter."

Paul M. Weyrich, chairman of the Free Congress Foundation and a conservative organizer, argued that Mr. Bush's pledge to nominate jurists like the conservative Justices Antonin Scalia and Clarence Thomas was the theme that held together his political coalition despite concerns about the war in Iraq, spending, immigration and other matters. "This is a reward, if you will, by Bush, in keeping his promise."

Both sides agree that liberals are likely to be on the defensive in future battles over the court. The youngest members of the court are all conservatives: Chief Justice Roberts, Justice Alito and Justice Thomas, 57. The oldest and most likely to leave the court next are liberals: Justice Ruth Bader Ginsburg, 72, and Justice John Paul Stevens, 85.

    Alito Sworn In as Justice After Senate Gives Approval, NYT, 1.2.2006, http://www.nytimes.com/2006/02/01/politics/politicsspecial1/01confirm.html

Alito Vote May Be Decisive

in Marquee Cases This Term

February 1, 2006
The New York Times
By ADAM LIPTAK

WASHINGTON, Jan. 31 — Justice Samuel A. Alito Jr. will have only one vote, of course, but it may be the decisive one in several of the marquee cases that will dominate the balance of the Supreme Court's term.

By the end of the term in early summer, legal analysts said, the nation will most likely have a good sense of whether Justice Alito will affirm or veer away from the direction set by his predecessor, Justice Sandra Day O'Connor, in cases involving the treatment of terror suspects and campaign finance. Justice Alito was confirmed Tuesday by a 58-to-42 vote in the Senate. [Page A16.]

A first taste of how his legal views on abortion, a signature issue for Justice O'Connor, may differ from hers could come before the end of the year. And other issues on which Justice O'Connor was often the swing vote, including affirmative action and religion, are certain to reach the court in coming years.

"Justice O'Connor's seat is the tipping point on a range of hot-button issues that the Supreme Court confronts every year, including at least a half a dozen cases the Supreme Court is still to confront this term," said Thomas C. Goldstein, a Washington lawyer who appears frequently before the court.

In other cases, though, Justice Alito's votes will probably have only a limited impact. He is expected to join the three justices considered conservative — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas — to form a voting bloc of four. Balancing that is a four-member liberal bloc made up of Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

That leaves Justice Anthony M. Kennedy as the court's new fulcrum.

"We changed from a court split 4 to 3, with two in the middle," said Richard Epstein, a law professor at the University of Chicago, referring to the dual swing votes of Justices O'Connor and Kennedy. "Now it's 4-1-4, and now it's Kennedy."

Justice Kennedy seems poised to be the court's crucial vote in cases involving gay rights, the government taking of private property and aspects of the death penalty.

There are, however, several important cases in which Justice Alito's replacement of Justice O'Connor will put him in the spotlight.

The court will soon decide, for instance, whether to hear a case concerning the constitutionality of the federal Partial-Birth Abortion Act of 2003, which would outlaw an abortion procedure. The law is quite similar to a Nebraska law struck down in 2000 by a 5-to-4 vote in Stenberg v. Carhart, with Justice O'Connor in the majority. Three federal appeals courts, two of them ruling on Tuesday, have held the federal law unconstitutional.

"Here, the difference between O'Connor and Alito, is widely expected to be decisive," said Erwin Chemerinsky, a law professor at Duke University. "We could get a read very soon on the difference between them on abortion."

There is no case on the horizon, however, that attacks the core holding of Roe v. Wade, the 1973 decision that found a constitutional right to abortion. Nor does it seem that Justice Alito would play a determinative role in such a case in any event, given what is known about the other justices' views. The court's line-up had stood at 6 to 3 in favor of fundamental abortion rights before the death of Chief Justice William H. Rehnquist and the retirement of Justice O'Connor.

Since Chief Justice Rehnquist was in the minority, his replacement by Chief Justice Roberts would not alter the balance if the new chief justice opposed abortion rights. Unless someone switches sides, then, Justice Alito could do no more than add a fourth dissenting vote.

Justice Kennedy was in the majority in Planned Parenthood v. Casey, a 1992 decision that affirmed Roe's core, but he dissented in Stenberg.

"The question now," said Pamela S. Karlan, a law professor at Stanford, "is, what's Kennedy's position going to be?"

Justice Alito will almost immediately begin work on two complex terrorism cases. Each revisits aspects of the trilogy of 2004 cases in which the Supreme Court, with Justice O'Connor in the majority, refused to endorse the Bush administration's broadest claim that people detained as terror suspects were not entitled to challenge their detentions in the courts.

The court is scheduled to hear arguments in March in the case of Salim Ahmed Hamdan, a Yemeni detainee at Guantánamo Bay, Cuba, who has challenged the military commissions the administration has created to try terror suspects. Chief Justice Roberts ruled against Mr. Hamdan in July as a judge on the federal appeals court in Washington, and he will not participate in the case in the Supreme Court. That makes Justice Alito's role much more prominent.

"With Roberts recused," Professor Chemerinsky said, "you have more of the possibility that Alito will have the decisive vote."

Another possibility is a 4-to-4 tie, which affirms the lower court's decision but does not establish a precedent.

After the Supreme Court agreed to hear the Hamdan case, President Bush signed into law a measure that may prohibit the court from considering it. It is not clear if the law applies retroactively and, if it does, whether it is constitutional.

The court is also considering whether to hear an appeal from Jose Padilla, an American citizen suspected of planning a terrorist attack who was held by the military for almost three years without charges. Not long after Mr. Padilla filed his appeal, the government transferred him from military custody to face criminal charges and urged the Supreme Court not to hear the appeal because it was moot.

In both the Hamdan and Padilla cases, said David A. Strauss, a law professor at the University of Chicago, there is reason to think that Justice Alito will be more sympathetic to the government's arguments than Justice O'Connor would have been.

The court will also hear arguments soon in two important election law cases, an area in which Justice O'Connor has often been at the center of the court.

In the first case, to be argued in February, the justices will consider whether Vermont's strict limits on campaign spending and contributions are constitutional.

In a 1976 case, Buckley v. Valeo, the Supreme Court equated money with speech and seemed to rule out any restrictions on expenditures by candidates. The court may be ready to revisit that question.

Vermont also limits contributions. Those limits — $400 to candidates seeking statewide office in a two-year election cycle and lower for other offices — are the tightest in the country.

Justice O'Connor cast the deciding vote in a 2003 decision upholding curbs on the unlimited contributions to political parties known as soft money in the McCain-Feingold campaign finance law.

"My guess," said Professor Epstein of the University of Chicago, "is that on these issues, Alito will prove to be more libertarian than O'Connor."

The second election law case, concerning the 2003 Congressional redistricting plan in Texas, again finds Justice Kennedy as the likely crucial vote. He took an equivocal position in a 2004 decision on the question of whether courts may ever consider claims of political gerrymandering.

On election law issues generally, said Richard L. Hasen, who teaches the subject at Loyola Law School in Los Angeles, "switching Alito for O'Connor is likely to have profound consequences from campaign finance to the interpretation of the Voting Rights Act to the constitutionality of the Voting Rights Act itself."

Justice O'Connor was also a swing vote in many affirmative action and religion cases, and it will not be long before those issues reach the court again. When they do, Justice Alito may move in a different direction. But few legal analysts expect him to vote to undo a line of cases in which the Supreme Court in recent years has curbed Congressional authority.

"The federalism cases are unlikely to change dramatically," Professor Karlan of Stanford said, "because both O'Connor and Rehnquist were in the majority in almost every case."

Alito Vote May Be Decisive in Marquee Cases This Term, NYT, 1.2.2006, http://www.nytimes.com/2006/02/01/politics/politicsspecial1/01legal.html

Alito Is Confirmed for Supreme Court

in 58-42 Vote

January 31, 2006
The New York Times
By DAVID STOUT

WASHINGTON, Jan. 31 — Judge Samuel A. Alito Jr., who has been widely praised for his intellect and integrity but both admired and assailed for his conservative judicial philosophy, was confirmed today as the 110th justice in the history of the Supreme Court.

The 58-to-42 vote in the Senate gives President Bush a political triumph just hours ahead of his televised State of the Union address before a joint session of Congress at 9 p.m. Eastern time. Judge Alito, who watched the vote from the Roosevelt Room in the White House with his family, is expected to be sworn in later today.

As expected, Judge Alito's support hewed closely to party lines. Among two Republican supporters of abortion rights, Senators Olympia J. Snowe of Maine voted for Judge Alito, while Lincoln Chafee of Rhode Island voted no, the only Republican to do so.

Judge Alito also won the support of four Democrats: Robert C. Byrd of West Virginia, Ben Nelson of Nebraska, Tim Johnson of South Dakota and Kent Conrad of North Dakota.

The vote is also a triumph for the conservative movement, whose adherents have longed to tilt the balance of the court to the right.

Admirers and critics have predicted that Samuel Alito will do just that. Legal scholars have described his jurisprudence as cautious, respectful of precedent — and solidly conservative. In contrast, the justice he will succeed, Sandra Day O'Connor, who is retiring, came to be widely regarded as a swing justice between the tribunal's liberal and conservative wings.

Judge Alito, who sat on the United States Court of Appeals for the Third Circuit for some 15 years, is only 55, so he could be on the Supreme Court for decades. He becomes the second relatively young conservative to ascend to the court in recent months. Last fall, Chief Justice John G. Roberts Jr., who turned 51 on Friday, replaced William H. Rehnquist, who died in early September.

Judge Alito's supporters have described him as a jurist who would not seek to undo the work of legislators and adopt his own agenda. His detractors say he has consistently sided with big government and big business, and that he does not believe a woman has a right to an abortion.

Today's vote was momentous politically and, for Judge Alito, personally. But it was in a sense anticlimactic; confirmation was assured on Monday afternoon, when the Senate voted to shut off debate on the nomination and give the nominee a yes-or-no vote.

Despite their differences over his judicial philosophy, Alito supporters and opponents have agreed that his is an inspiring American story.

Samuel Alito grew up in modest circumstances in Trenton, the son of an Italian immigrant father who worked for the New Jersey Legislature and a mother who was a school principal. As an undergraduate at Princeton and a student at Yale Law School, he garnered prestigious academic prizes as well as notice for his conservative views, which were conspicuously in the minority, and for his civility in engaging ideological opponents.

When Judge Alito graduated from Princeton in 1972, an intense moment in the Vietnam anti-war movement, he was just one of 12 members of his class to receive a military commission through the R.O.T.C program. He served just three months on active duty, in 1975, though he remained in the Army Reserve until 1980.

His involvement with a conservative Princeton alumni group became something of an issue during his confirmation hearings when Democrats on the Senate Judiciary Committee said that it had held positions opposing the admission of women and minorities. Judge Alito said he had little to do with the group and had joined it simply because it was fighting efforts to abolish R.O.T.C. from the Princeton campus. The committee passed his nomination to the full Senate on a strict party-line vote, 10 to 8.

Before the first President Bush elevated him to the appeals court in 1990, Judge Alito worked mostly as a government lawyer in a number of positions in Washington and New Jersey, including a stint as United States attorney there.

Despite his deep New Jersey roots, Judge Alito was confirmed today without the support of the senators from his home state. Senators Frank R. Lautenberg and Robert Menendez, both Democrats, said the judge's philosophy made him a bad choice for the high court.

"It's not where you come from that matters," Mr. Menendez said before the vote, "but where you will take the nation."

But history shows that a justice's path cannot always be charted in advance.

Two of President Dwight D. Eisenhower's Supreme Court nominees, Earl Warren and William J. Brennan Jr., turned out to be considerably more liberal than Eisenhower had envisioned or desired. And Justice David H. Souter, named to the court by the first President Bush, has likewise been a disappointment to latter-day conservatives.

Maria Newman contributed reporting from New York for this article.

    Alito Is Confirmed for Supreme Court in 58-42 Vote, NYT, 31.1.2006, http://www.nytimes.com/2006/01/31/politics/politicsspecial1/31cnd-alito.html

Conservatives See Court Shift

as Culmination

January 30, 2006
The New York Times
By DAVID D. KIRKPATRICK

Last February, as rumors swirled about the failing health of Chief Justice William H. Rehnquist, a team of conservative grass-roots organizers, public relations specialists and legal strategists met to prepare a battle plan to ensure any vacancies were filled by like-minded jurists.

The team recruited conservative lawyers to study the records of 18 potential nominees — including Judges John G. Roberts Jr. and Samuel A. Alito Jr. — and trained more than three dozen lawyers across the country to respond to news reports on the president's eventual pick.

"We boxed them in," one lawyer present during the strategy meetings said with pride in an interview over the weekend. This lawyer and others present who described the meeting were granted anonymity because the meetings were confidential and because the team had told its allies not to exult publicly until the confirmation vote was cast.

Now, on the eve of what is expected to be the Senate confirmation of Judge Alito to the Supreme Court, coming four months after Chief Justice Roberts was installed, those planners stand on the brink of a watershed for the conservative movement.

In 1982, the year after Mr. Alito first joined the Reagan administration, that movement was little more than the handful of legal scholars who gathered at Yale for the first meeting of the Federalist Society, a newly formed conservative legal group.

Judge Alito's ascent to join Chief Justice Roberts on the court "would have been beyond our best expectations," said Spencer Abraham, one of the society's founders, a former secretary of energy under President Bush and now the chairman of the Committee for Justice, one of many conservative organizations set up to support judicial nominees.

He added, "I don't think we would have put a lot of money on it in a friendly wager."

Judge Alito's confirmation is also the culmination of a disciplined campaign begun by the Reagan administration to seed the lower federal judiciary with like-minded jurists who could reorient the federal courts toward a view of the Constitution much closer to its 18th-century authors' intent, including a much less expansive view of its application to individual rights and federal power. It was a philosophy promulgated by Edwin Meese III, attorney general in the Reagan administration, that became the gospel of the Federalist Society and the nascent conservative legal movement.

Both Mr. Roberts and Mr. Alito were among the cadre of young conservative lawyers attracted to the Reagan administration's Justice Department. And both advanced to the pool of promising young jurists whom strategists like C. Boyden Gray, White House counsel in the first Bush administration and an adviser to the current White House, sought to place throughout the federal judiciary to groom for the highest court.

"It is a Reagan personnel officer's dream come true," said Douglas W. Kmiec, a law professor at Pepperdine University who worked with Mr. Alito and Mr. Roberts in the Reagan administration. "It is a graduation. These individuals have been in study and preparation for these roles all their professional lives."

As each progressed in legal stature, others were laying the infrastructure of the movement. After the 1987 defeat of the Supreme Court nomination of Judge Robert H. Bork conservatives vowed to build a counterweight to the liberal forces that had mobilized to stop him.

With grants from major conservative donors like the John M. Olin Foundation, the Federalist Society functioned as a kind of shadow conservative bar association, planting chapters in law schools around the country that served as a pipeline to prestigious judicial clerkships.

During their narrow and politically costly victory in the 1991 confirmation of Justice Clarence Thomas, the Federalist Society lawyers forged new ties with the increasingly sophisticated network of grass-roots conservative Christian groups like Focus on the Family in Colorado Springs and the American Family Association in Tupelo, Miss. Many conservative Christian pastors and broadcasters had railed for decades against Supreme Court decisions that outlawed school prayer and endorsed abortion rights.

During the Clinton administration, Federalist Society members and allies had come to dominate the membership and staff of the Judiciary Committee, which turned back many of the administration's nominees. "There was a Republican majority of the Senate, and it tempered the nature of the nominations being made," said Mr. Abraham, the Federalist Society founder who was a senator on the Judiciary Committee at the time.

By 2000, the decades of organizing and battles had fueled a deep demand in the Republican base for change on the court. Mr. Bush tapped into that demand by promising to name jurists in the mold of conservative Justices Thomas and Scalia.

When Mr. Bush named Harriet E. Miers, the White House counsel, as the successor to Justice O'Connor, he faced a revolt from his conservative base, which complained about her dearth of qualifications and ideological bona fides.

"It was a striking example of the grass roots having strong opinions that ran counter to the party leaders about what was attainable," said Stephen G. Calabresi, a law professor at Northwestern University and another founding member of the Federalist Society.

But in October, when President Bush withdrew Ms. Miers's nomination and named Judge Alito, the same network quickly mobilized behind him.

Conservatives had begun planning for a nomination fight as long ago as that February meeting, which was led by Leonard A. Leo, executive vice president of the Federalist Society and informal adviser to the White House, Mr. Meese and Mr. Gray.

They laid out a two-part strategy to roll out behind whomever the president picked, people present said. The plan: first, extol the nonpartisan legal credentials of the nominee, steering the debate away from the nominee's possible influence over hot-button issues. Second, attack the liberal groups they expected to oppose any Bush nominee.

The team worked through a newly formed group, the Judicial Confirmation Network, to coordinate grass-roots pressure on Democratic senators from conservative states. And they stayed in constant contact with scores of conservative groups around the country to brief them about potential nominees and to make sure they all stuck to the same message. They fine-tuned their strategy for Judge Alito when he was nominated in October by recruiting Italian-American groups to protest the use of the nickname "Scalito," which would have linked him to the conservative Justice Antonin Scalia.

In November, some Democrats believed they had a chance to defeat the nomination after the disclosure of a 1985 memorandum Judge Alito wrote in the Reagan administration about his conservative legal views on abortion, affirmative action and other subjects.

"It was a done deal," one of the Democratic staff members of the Senate Judiciary Committee said, speaking on the condition of anonymity because the staff is forbidden to talk publicly about internal meetings. "This was the most evidence we have ever had about a Supreme Court nominee's true beliefs."

Mr. Leo and other lawyers supporting Judge Alito were inclined to shrug off the memorandum, which described views that were typical in their circles, people involved in the effort said. But executives at Creative Response Concepts, the team's public relations firm, quickly convinced them it was "a big deal" that could become the centerpiece of the Democrats' attacks, one of the people said.

"The call came in right away," said Jay Sekulow, chief counsel of the American Center for Law and Justice and another lawyer on the Alito team.

Responding to Mr. Alito's 1985 statement that he disagreed strongly with the abortion-rights precedents, for example, "The answer was, 'Of course he was opposed to abortion,' " Mr. Sekulow said. "He worked for the Reagan administration, he was a lawyer representing a client, and it may well have reflected his personal beliefs. But look what he has done as judge."

His supporters deluged news organizations with phone calls, press releases and lawyers to interview, all noting that on the United States Court of Appeals for the Third Circuit, Judge Alito had voted to uphold and to strike down abortion restrictions.

Democrats contended that those arguments were irrelevant because on the lower court Judge Alito was bound by Supreme Court precedent, whereas as a justice he could vote to overturn any precedents with which he disagreed.

By last week it was clear that the judge had enough votes to win confirmation. And the last gasp of resistance came in a Democratic caucus meeting on Wednesday when Senator Edward M. Kennedy, joined by Senator John Kerry, both of Massachusetts, unsuccessfully tried to persuade the party to organize a filibuster.

No one defended Judge Alito or argued that he did not warrant opposition, Mr. Kennedy said in an interview. Instead, opponents of the filibuster argued about the political cost of being accused of obstructionism by conservatives.

Still, on the brink of this victory, some in the conservative movement say the battle over the court has just begun. Justice O'Connor was the swing vote on many issues, but replacing her with a more dependable conservative would bring that faction of the court at most to four justices, not five, and thus not enough to truly reshape the court or overturn precedents like those upholding abortion rights.

"It has been a long time coming," Judge Bork said, "but more needs to be done."

    Conservatives See Court Shift as Culmination, NYT, 30.1.2006, http://www.nytimes.com/2006/01/30/politics/politicsspecial1/30alito.html

Court Opens Campaign Law to Challenges

January 24, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Jan. 23 - The Supreme Court, ruling on Monday in an important campaign finance case, opened the door to a new round of legal challenges to the limits Congress placed four years ago on election advertisements paid for by corporations and broadcast during the weeks before federal elections.

The court's opinion was surprising, coming only six days after the argument. It was unsigned, barely two pages long and unanimous.

It may, however, have considerable impact, given that two years ago the court itself appeared to foreclose further challenges to the "electioneering communications" part of the Bipartisan Campaign Reform Act of 2002. The court upheld the law, usually called McCain-Feingold after its Senate sponsors, in a 5-to-4 decision that considered multiple free-speech challenges to the statute "on its face" rather than in particular applications.

The court ruled on Monday that both the government and a special three-judge Federal District Court here had misinterpreted its earlier decision as foreclosing future challenges to the advertising restrictions as they applied to particular advertisements or corporate sponsors.

The justices vacated the lower court's opinion and ordered it to consider the merits of an anti-abortion group's argument that the statute, if applied to an advertisement the group sought to broadcast on Wisconsin television stations beginning in the summer of 2004, would violate the First Amendment rights to free speech and to petition the government.

In upholding the electioneering-communication provision "against a facial challenge in the 2003 decision," the justices said, "we did not purport to resolve future as-applied challenges."

The disposition of the case bought the justices, who are closely divided on campaign finance issues, some time during a period of transition, and might have represented a strategic choice that appealed to both sides. The same might be said of the court's unanimous opinion last week in an abortion case from New Hampshire.

Many people who heard the argument in the campaign case last week came away with the impression that given the imminent departure of Justice Sandra Day O'Connor, who might not have been able to cast a final vote, the decision could well have been a 4-to-4 deadlock.

Election law specialists said the likely impact of the decision, Wisconsin Right to Life Inc. v. the Federal Election Commission, No. 04-1581, would be to reopen the issue of how to administer the law. It invites new litigation, they said, over whether specific advertisements fall under the law's definition of those that may not be broadcast within 60 days of a federal general election with money from a corporation's treasury.

Under the definition, an "electioneering communication" need not use words like "vote for" or "vote against." Rather, the law covers advertisements that refer to a clearly identified candidate for a federal office and are "targeted to the relevant electorate." Corporations must pay for such advertisements with money raised through a political action committee, which is subject to strict limits and reporting requirements.

In its lawsuit, Wisconsin Right to Life described itself as a grass-roots lobbying organization and said the advertisement it wanted to broadcast was part of a constitutionally protected lobbying effort.

The advertisement urged Wisconsin residents to call their senators, Herb Kohl and Russell D. Feingold, both Democrats, and encourage them not to filibuster President Bush's judicial nominees. Mr. Feingold was seeking re-election at the time. Wisconsin Right to Life has a political action committee, but it had only $13,000 in its account at the time, and the group sought to use money from its general treasury.

Edward B. Foley, an election law specialist at Ohio State University, said in an interview that while the court's action on Monday appeared narrow and procedural, it was actually neither in its practical impact.

The Supreme Court was telling the district court to define both the scope of a constitutionally required exemption from the law and the standard for winning such an exemption, Professor Foley said. If the standard proves "unworkable and messy," he said, that might give the law's opponents on the court a basis for re-examining the 2003 precedent itself.

Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles, said the decision on Monday created new uncertainty about the court's campaign finance jurisprudence. "It puts the Federal Election Commission and the courts back in the business of evaluating the subjective intent of each ad," he said, adding that the law's sponsors had hoped to avoid that possibility by writing a broad but clear definition.

James Bopp Jr., who argued the case for the anti-abortion group, said the lower court "must now confront the real merits of this case, namely, that there is no constitutional justification for prohibiting grass-roots lobbying about upcoming votes in Congress just because we are in an election season."

    Court Opens Campaign Law to Challenges, NYT, 24.1.2006, http://www.nytimes.com/2006/01/24/politics/politicsspecial1/24donate.html

Supreme Court:

states can be sued under bankruptcy law

Mon Jan 23, 2006 11:19 AM ET
Reuters

WASHINGTON (Reuters) - States can be sued in certain bankruptcy proceedings, a divided U.S. Supreme Court ruled on Monday in a case that pitted state powers against those of the federal government.

By a 5-4 vote, the high court rejected arguments that states could not be sued because of state sovereign immunity. The court said Congress, in adopting the bankruptcy law, has the power to treat states the same way as other creditors.

The decision departed from the series of rulings in recent years by the court's conservative majority that generally have expanded the immunity of states from lawsuits while cutting back on the power of Congress.

The case involved four state-run colleges in Virginia -- Central Virginia Community College, Virginia Military Institute, New River Community College and Blue Ridge Community College.

Wallace Bookstores, which operated a chain of college bookstores, filed for bankruptcy in 2001. The liquidating supervisor of the bankruptcy estate sued the four colleges in an attempt to recover money owed to Wallace.

The colleges moved to dismiss on the grounds that state sovereign immunity barred the lawsuit. But a federal bankruptcy court, a federal judge and a U.S. appeals court all rejected the request and said Congress acted within its power in revoking state immunity in bankruptcy proceedings.

The high court, in an opinion written by Justice John Paul Stevens, agreed. He was joined by Justices Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Stevens said the ruling involved proceedings initiated by a bankruptcy trustee to set aside preferential transfers by the debtor to state agencies.

Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Antonin Kennedy dissented. Thomas wrote that the majority opinion cannot be justified by the U.S. Constitution and that it conflicted with the court's precedents on state sovereign immunity.

    Supreme Court: states can be sued under bankruptcy law, R, 23.1.2006,
http://today.reuters.com/news/
newsArticle.aspx?type=politicsNews&storyID=2006-01-23T161910Z_01_N04259058_RTRUKOC_0_US-COURT-BANKRUPTCY.xml

Most Americans back Alito

for Supreme Court: poll

Mon Jan 23, 2006 6:29 PM ET
Reuters
By Thomas Ferraro

WASHINGTON (Reuters) - Public support for Senate confirmation of U.S. Supreme Court nominee Samuel Alito grew slightly to 54 percent after his often stormy Senate hearing, a poll released on Monday showed.

The CNN/USA Today/Gallup survey also found that only about one in three Americans believe President George W. Bush's conservative candidate would vote, as critics fear, to reverse the 1973 Supreme Court decision that legalized abortion.

The Senate Judiciary Committee, which held Alito's confirmation hearing this month, was to vote on Tuesday on whether to recommend that he be confirmed by the full Republican-led, 100-member Senate.

With the Senate to begin debate on Wednesday, Alito, a federal appeals judge since 1990, appeared headed toward confirmation.

If approved, Alito would replace retiring Justice Sandra Day O'Connor, a moderate conservative who often has been the swing vote on the nine-member court on social issues such as abortion rights and civil rights.

At his hearing, Republicans hailed Alito as "mainstream conservative" who had received the American Bar Association's top rating.

Democrats voiced concerns that he would move the court too far to the right.

The three-day telephone poll of 1,006 adult Americans was begun on January 20, a week after his confirmation hearing ended.

According to the survey, the percentage of Americans who believed Alito should be confirmed rose to 54 percent from 49 percent. Those opposed remained unchanged at 30 percent.

Most of the Senate's 44 Democrats and one independent are expected to oppose Alito. But none has threatened a filibuster, which would permit unlimited debate intended to kill the nomination.

Bush noted on Monday that 14 senators -- seven Democrats and seven Republicans -- agreed last year to oppose filibusters of judicial nominees unless there are "extraordinary circumstances."

"There has been no sign of any extraordinary circumstance except for this extraordinary thing -- he's extraordinarily capable to serve on the Supreme Court," Bush said in fielding questions at Kansas State University.

    Most Americans back Alito for Supreme Court: poll, R, 23.1.2006,
http://today.reuters.com/news/
newsArticle.aspx?type=politicsNews&storyID=
2006-01-23T232910Z_01_N23338709_RTRUKOC_0_US-USA-COURT-ALITO.xml

Supreme Court

Won't Hear BlackBerry Appeal

January 23, 2006
By THE ASSOCIATED PRESS
Filed at 10:51 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday refused to hear an appeal from the maker of the BlackBerry in the long-running battle over patents for the wildly popular, handheld wireless e-mail device.

The high court's refusal to hear Canada-based Research In Motion Ltd.'s appeal means that a trial judge in Richmond, Va., could impose an injunction against the company and block BlackBerry use among many of its owners in the United States.

The justices had been asked to decide on whether U.S. patent law is technologically out of date in the age of the Internet and the global marketplace.

At issue was how U.S. law applies to technology that is used in a foreign country and allegedly infringes on the intellectual property rights of a patent-holder in the United States.

The justices were asked to decide whether Research In Motion can be held liable for patent infringement when its main relay station for e-mail and data transmission is located in Waterloo, Ontario, outside U.S. borders.

RIM was challenging a ruling by a federal appeals court that found that the company had infringed on the patents held by NTP Inc., a tiny northern Virginia patent-holding firm, because its customers use the BlackBerry inside U.S. borders. The panel said it did not matter where the relay station is located.

Since its introduction in 1999, the BlackBerry has revolutionized communications, allowing business travelers and government employees to send and receive e-mail outside their offices and away from their stationery computers.

The BlackBerry almost instantaneously transmits data through radio frequency technology that Thomas Campana Jr., an engineer, says he developed in 1990, long before the Internet became an integral part of American life.

The dispute not only has resonated with BlackBerry users who worry that their lifeline to their offices could be severed. The U.S. and Canadian governments also are concerned, as is Intel Corp., the world's largest semiconductor manufacturer.

U.S. officials worry about the loss of BlackBerry use for law enforcement and health workers in a crisis, while the Canadian government is concerned that research and development in other industries will be stifled if RIM loses on all fronts.

In a filing with the Supreme Court, Intel's lawyers said the company is torn. As an investor of billions of dollars into research and development, the company is among the nation's leaders in obtaining patents and wants to protect itself against infringement.

At the same time, Intel also is frequently accused of infringement and wants clearer rules that protect it from small patent-holding companies that have little infrastructure and produce no products.

Attorney Herbert L. Fenster, who represents RIM, said the company is fighting the injunction. But he said an injunction would not end BlackBerry use among at least 1 million of its 3 million users in the United States.

Fenster said he believes federal law prohibits U.S. District Judge James R. Spencer from cutting off BlackBerry service to federal, state and local government users and others who rely on the devices to communicate during a public emergency.

Spencer has set a Feb. 1 deadline for filings on the injunction issue.

The legal fight began in 2001, when NTP sued RIM for infringement. The next year, a jury in Richmond decided that RIM had infringed on patents held by NTP, awarding the company 5.7 percent of U.S. BlackBerry sales. Spencer later increased that rate to 8.55 percent. At last count, the tally of damages and fees had exceeded $200 million and it continues to grow.

Last year, attempts to resolve the case fell apart when Spencer disapproved a settlement in which RIM would have paid $450 million to NTP.

The case is RIM v. NTP, 05-763.

------

On the Net:

Supreme Court: www.supremecourtus.gov

    Supreme Court Won't Hear BlackBerry Appeal, NYT, 23.1.2006, http://www.nytimes.com/aponline/technology/AP-Scotus-BlackBerry-Battle.html

Rallies mark Roe v. Wade anniversary

Posted 1/22/2006 4:47 PM Updated 1/22/2006 10:57 PM
USA Today

SAN FRANCISCO — Thousands of abortion rights opponents marched over the weekend in protest of the Roe v. Wade decision, which gave women the right to have abortions. Sunday was the 33rd anniversary of the Supreme Court decision. The largest protest is scheduled for today in Washington.

The March for Life in Washington is to start at noon with a rally on the National Mall near the Washington Monument, followed by a march to the Capitol and Supreme Court. The march has drawn hundreds of thousands of people in past years.

Protests Saturday in San Francisco drew many people who said they hoped for the overturning of Roe v. Wade. An overturning of the case would leave states free to decide whether to allow abortion. That concerned counterprotesters who said they are worried about the nomination of Judge Samuel Alito to the Supreme Court.

"It's a crucial time," said abortion rights supporter Carol Norris, 43. "We have Alito poised to be on the Supreme Court, and he's clearly an anti-choice person."

Abortion rights supporters along the march route shouted, "Bigots, go home" at marchers, who included college student Laura Arnold, 20, of Pleasanton, Calif. "We're here to stand up for the babies that don't have a voice," she said.

Rallies mark Roe v. Wade anniversary, NYT, 22.1.2006,
http://www.usatoday.com/news/nation/2006-01-22-roe-wade-anniversary_x.htm

Justices Reaffirm

Emergency Access to Abortion

January 19, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Jan. 18 - In its first ruling on an abortion case in six years, the Supreme Court issued a unanimous decision on Wednesday that reaffirmed the need to include an exception for medical emergencies in a law that restricts teenagers' access to abortion.

The decision told a lower court to reconsider its ruling that struck down, in its entirety, a New Hampshire law that fails to include such an exception. "We try to limit the solution to the problem," Justice Sandra Day O'Connor said in her opinion for the court, instructing the lower court to consider invalidating the law only as it applies to those few teenagers who need an immediate abortion for medical reasons.

"We do not revisit our abortion precedents today," Justice O'Connor declared in the opening words of what is likely to be her last opinion for the court. The studiously bland 10-page opinion carefully sidestepped the abortion debate that has been a prominent feature of public discourse about the court's future.

The hiatus may be brief, however. At their conference on Friday, the justices are scheduled to take up the Bush administration's appeal of a lower court ruling that declared unconstitutional a federal law, the Partial-Birth Abortion Ban Act of 2003.

That case, on which the court had deferred action until the New Hampshire case was decided, presents issues that may not be so easily avoided. Further, the federal case, if the court agrees to hear it, would be argued after Justice O'Connor's departure. She was part of the 5-to-4 majority that struck down a Nebraska precursor of the federal law in 2000, so her successor, who is likely to be Judge Samuel A. Alito Jr., could cast the deciding vote.

In the New Hampshire decision on Wednesday, the justices accepted the finding by two lower federal courts that the New Hampshire law was constitutionally deficient in not making explicit provisions for pregnant teenagers facing a medical emergency. The law requires notice to a parent, followed by a 48-hour waiting period, before a doctor can perform an abortion on a girl under the age of 18.

Where the justices differed from the Federal District Court in Concord, N.H., and the United States Court of Appeals for the First Circuit, in Boston, was on how to remedy the absence of a medical-emergency provision. The two lower courts had barred enforcement of the entire statute, even for the great majority of teenagers for whom the lack of an exception is not relevant.

The choice of this "most blunt remedy" was unjustified, Justice O'Connor said, when a "more finely drawn" remedy might be more consistent with the intent of the legislature, which passed the law in 2003.

Consequently, the Supreme Court vacated the appeals court's decision and ordered it to examine which option the legislature would have preferred: a statute with an emergency exception, or no enforceable parental-notice law. "We try not to nullify more of a legislature's work than is necessary," Justice O'Connor said. "The touchstone for any decision about remedy is legislative intent."

If the decision, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, turns out to be Justice O'Connor's last, it will be a fitting coda to a 25-year tenure in which she often played a pivotal role in the court's abortion jurisprudence.

Perhaps Chief Justice John G. Roberts Jr. had that in mind when he assigned her the opinion after the case was argued Nov. 30. It was evident from that argument that the justices were looking for a narrow way to decide the case and were setting aside, for the moment, whatever passion they bring to the abortion debate. Justice O'Connor's opinion embodied that collective judgment, whether under the guiding hand of the new chief justice or due to a confluence of individual responses.

A unanimous decision last week, rejecting state immunity from some lawsuits by disabled prison inmates, reflected a similar desire to rule narrowly and avoid hard issues for now.

However the New Hampshire decision was reached, "the decision preserves the status quo while the court is in transition," said Clarke D. Forsythe, senior attorney for Americans United for Life, a public interest law firm that litigates against abortion.

Mr. Forsythe filed a brief in the New Hampshire case on behalf of the sponsors of the New Hampshire law, the Parental Notification Prior to Abortion Act. In an interview, he said the answer to Justice O'Connor's question was "absolutely clear." Rather than have no parental-notice law at all, he said, the sponsors would accept an exception for medical emergencies, a choice he said they made clear by including a clause in the statute providing that if any application of the law was found to be invalid, "such invalidity shall not affect the provisions or applications" as to which there was no problem.

By including this language, known as a severability clause, the sponsors "practically anticipated" the court's decision, he said.

An opposite brief, on behalf of 153 New Hampshire legislators who opposed the parental-notice law, was filed in support of the plaintiffs, a doctor and three medical clinics. These legislators said the debate over the bill made clear that the sponsors wanted to test the Supreme Court's abortion precedents and "would have preferred to have no law rather than a law that contains a medical emergency exception in it."

Jennifer Dalven, a lawyer for the American Civil Liberties Union who argued the case for the plaintiffs in the Supreme Court, said in an interview that the sponsors "very clearly did not want a health exception" and predicted that the lower courts would once again bar enforcement of the entire statute.

"We're very happy that the court reaffirmed the need for a medical emergency exception," Ms. Dalven said, adding that the decision "tells politicians that they can't jeopardize women's health" when enacting abortion restrictions.

The Supreme Court for years has upheld state laws requiring parental involvement in a teenager's abortion decision, and 44 states now have such laws. The basic validity of these laws was not at issue. Nor, Justice O'Connor said, was the requirement that access to abortions "necessary, in appropriate medical judgment, for preservation of the life or health of the mother" may not be restricted.

Her opinion cited five precedents for that proposition, going back to Roe v. Wade in 1973. Notably absent from the list was the court's most recent abortion ruling, Stenberg v. Carhart, which in 2000 struck down Nebraska's ban on the procedure opponents call "partial birth abortion" in part because the law failed to provide a health exception. That decision provoked four vigorous dissents, and the price for the unanimity of the new opinion might have been the omission of the reference.

In spite of the Nebraska ruling, Congress passed the federal Partial-Birth Abortion Ban Act, now pending before the court in Gonzales v. Carhart, No. 05-380. The act does not include a medical exception, instead simply declaring that the procedure is never necessary to protect a woman's health. The case presents a direct challenge to the court's willingness to adhere to its precedent.

    Justices Reaffirm Emergency Access to Abortion, NYT, 19.1.2006, http://www.nytimes.com/2006/01/19/politics/politicsspecial1/19scotus.html

Supreme Court

Steers Clear of First Abortion Case

in 5 Years

January 18, 2006
The New York Times
By DAVID STOUT

WASHINGTON, Jan. 18 - The Supreme Court ruled unanimously today that the lower courts were wrong to declare a New Hampshire abortion law unconstitutional in its entirety. Instead, the justices said, the lower courts should look for a less drastic way to repair the statute's flaws.

Abortion-rights advocates have attacked the New Hampshire law, which demands that parents be notified before a teenager ends her pregnancy, because in their view it fails to provide adequately for exceptions to protect the health of the mother in medical emergencies that are not life-threatening.

In sending the case back to the United States Court of Appeals for the First Circuit, in Boston, the justices avoided a sweeping decision.

"We do not revisit our abortion precedents today, but rather address a question of remedy," Justice Sandra Day O'Connor wrote at the outset, in what could be her last opinion.

Justice O'Connor said the circuit court and a federal district court "chose the most blunt remedy" by invalidating the law entirely. "They need not have done so," Justice O'Connor wrote.

The decision has been eagerly awaited by people on all sides of the abortion debate and by officials in the many other states that impose some restrictions on teenagers seeking abortions.

Justice O'Connor, who has announced her intention to retire and will step down if Judge Samuel A. Alito Jr. is confirmed as her successor, as expected, is widely regarded as a swing voter on the court, bridging its liberal and conservative wings.

When the New Hampshire case was argued before the justices on Nov. 30, Justice O'Connor practically forecast how she would decide.

"Is there any objection by you to remanding this thing to let it be more narrowly focused?" she asked a lawyer for the abortion clinics that have challenged the New Hampshire law. Other justices also signaled a desire not to dismantle the law.

Today's measured ruling was a victory for New Hampshire's attorney general, Kelly A. Ayotte, who had appealed the lower court's ruling. It was also a victory for the Bush administration, which had argued on Ms. Ayotte's behalf that the statute should not be totally undone.

But Jennifer Dalven, an attorney with the American Civil Liberties Union who had argued on behalf of the abortion clinics, said today's ruling was also good for her side. "It tells politicians that they must include protections for women's health and safety when they pass abortion laws," Ms. Dalven told The Associated Press.

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

In the Nov. 30 arguments, the justices indicated by their questions that they thought New Hampshire's law did not make sufficient allowance for medical emergencies. The statute, which has never taken effect because of the lower court rulings against it, requires notice to at least one parent and a 48-hour waiting period, although judges can issue emergency orders if parents are not available.

"States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy," Justice O'Connor wrote. "Accordingly, we have long upheld state parental involvement statutes like the act before us, and we cast no doubt on those holdings today." But, she added in a footnote, "it is the sad reality" that some young women lack "a loving and supportive parent" to whom they can turn.

Today's unanimous opinion contained language that will probably please President Bush, given his frequent complaints about "judges who legislate from the bench."

"First," Justice O'Connor wrote, "We try not to nullify more of a legislature's work than is necessary." To strike down a law as unconstitutional, she wrote, "frustrates the intent of the elected representatives of the people."

Phyllis Woods, a former New Hampshire state representative who was a main sponsor of the law, told The A.P. she was pleased by the ruling but concerned that the First Circuit might require a broad health exception.

"Our concern has always been that a blanket health exception opens the door and really negates the whole purpose of the bill," she said.

Two organizations on opposite sides of the abortion debate, Operation Rescue and the National Women's Law Center, had mixed reactions to the ruling.

"We are glad that the court has indicated that parental-notification laws are indeed constitutional," said Operation Rescue's president, Troy Newman, "but we have found that the 'life and health' exceptions to these kinds of laws are loopholes that end up unnecessarily costing the innocent lives of pre-born babies."

Marcia D. Greenberger, co-president of the National Women's Law Center, called the court's refusal to revisit its abortion precedents "a fitting tribute to the legacy of Sandra Day O'Connor."

"We fear what will happen if - as envisioned by Judge Alito - a reconstituted Supreme Court, without Sandra Day O'Connor, does decide to revisit its past precedent protecting women's right to choose," Ms. Greenberger said.

Supreme Court Steers Clear of First Abortion Case in 5 Years, NYT, 18.1.2006, http://www.nytimes.com/2006/01/18/politics/18cnd-scotus.html

Related > http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1144&friend=nytimes

Justices Reject

U.S. Bid to Block Assisted Suicide

January 18, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Jan. 17 - The Supreme Court removed an obstacle on Tuesday to state efforts to authorize physician-assisted suicide, ruling 6 to 3 that John Ashcroft, the former attorney general, acted without legal authority when he threw the federal government's weight against the Death With Dignity Act in Oregon five years ago.

With the new chief justice, John G. Roberts Jr., in dissent in the most high-profile case since he joined the court, the decision lifted a major barrier to state initiatives like the one in Oregon, which has the only assisted-suicide law in the country.

Justice Anthony M. Kennedy's majority opinion did not say that Congress could not act to block such laws, only that it had not given Mr. Ashcroft the "extraordinary authority" that he claimed when he threatened Oregon doctors who followed the state law with losing their federal prescription-writing privileges.

While the court's decision was based on standard principles of administrative law, and not on the Constitution, it was clearly influenced by the majority's view that the regulation of medical practice belonged, as a general matter, to the states. Mr. Ashcroft acted contrary to "the background principles of our federal system," Justice Kennedy said in his 28-page opinion.

The decision on Tuesday upheld rulings by two lower federal courts. Mr. Ashcroft, while attorney general, appealed to the Supreme Court in November 2004. His successor, Alberto R. Gonzales, embraced his position and pursued the appeal after the justices agreed last February to hear the case.

Chief Justice Roberts did not write a dissenting opinion, instead signing a dissent written by Justice Antonin Scalia. For those eager for any hint about the new chief justice's predilections, his silent joining of this strongly worded opinion was intriguing. When the case was argued on Oct. 5, his second day on the bench, Chief Justice Roberts was an active participant but did not tip his hand.

At his confirmation hearing, he had declined to answer questions about his personal views on issues like assisted suicide, saying a judge's views and values should play no role in his judicial decisions.

Justice Clarence Thomas did write a dissenting opinion, saying it was "perplexing to say the least" to find the court interpreting federal drug law narrowly in this instance when only months ago, it upheld broad federal authority to prevent states from authorizing the use of marijuana for medical purposes.

Oregon voters approved the Death With Dignity Act in 1994 and affirmed it 1997. The law says that doctors who follow specific procedures may prescribe lethal doses of federally regulated medications to help their mentally competent, terminally ill patients end their lives. Through 2004, 325 people had obtained the lethal prescriptions, and 208 had used them.

When the Oregon measure took effect, Mr. Ashcroft was a senator from Missouri. Along with other members of Congress, he asked the Clinton administration to take steps to block the law. Attorney General Janet Reno refused, writing to Congress in June 1998 to say she had no authority to act because there was no evidence that Congress "intended to displace the states as the primary regulators of the medical profession." Mr. Ashcroft then co-sponsored a bill to give the government this authority, but it did not pass.

As attorney general, Mr. Ashcroft announced in November 2001 that doctors who prescribed lethal doses of drugs for the purpose of assisting a suicide risked losing their federal licenses to prescribe all "controlled substances." Without such licenses, doctors would find it difficult to practice medicine because controlled substances include many prescription pain relievers and other commonly used medications.

Oregon sued to block the new rule, joined by a doctor, a pharmacist and several terminally ill patients.

As authority for his action, Mr. Ashcroft invoked the Controlled Substances Act, a 1970 law that established the framework for federal drug policy, as well as a regulation issued by the Justice Department the following year that put the law into effect. The regulation requires that every prescription for a controlled substance "be issued for a legitimate medical purpose." Assisted suicide is "not a legitimate medical purpose," Mr. Ashcroft said.

In his opinion on Tuesday, Gonzales v. Oregon, No. 04-623, Justice Kennedy emphasized, with evident disapproval, the unilateral nature of Mr. Ashcroft's action, taken "without consulting Oregon or apparently anyone outside his department." The attorney general's rule was not entitled to the deference the court usually gave to interpretations of governing statutes by executive branch officials, he said, because Congress had not given the attorney general the authority he was invoking.

"The authority claimed by the attorney general is both beyond his expertise and incongruous with the statutory purposes and design," Justice Kennedy said.

Justice Scalia, in his dissenting opinion, took issue with the argument that Congress could not have intended to delegate medical judgments of this sort to the attorney general. The legitimacy of physician-assisted suicide "ultimately rests, not on 'science' or 'medicine,' but on a naked value judgment," he said, adding, "It no more depends upon a 'quintessentially medical judgment' than does the legitimacy of polygamy or eugenic infanticide."

Justice Scalia said Mr. Ashcroft's action was "the most reasonable interpretation" of the statute because "virtually every relevant source of authoritative meaning confirms that the phrase 'legitimate medical purpose' does not include intentionally assisting suicide."

In the few months since the case was argued on Oct. 5, the question of how skeptically the Supreme Court will be willing to examine the exercise of power by the executive branch has become considerably more prominent. This issue also seemed to mark a divide between the majority and the dissent.

In his opinion, Justice Kennedy said that Mr. Ashcroft was claiming the "extraordinary authority" to declare as criminal actions that Congress had not designated as crimes, and that he was seeking "a radical shift of authority from the states to the federal government to define general standards of medical practice in every locality."

But Congress had no such intent in passing the Controlled Substances Act, Justice Kennedy said. "The structure and operation of the C.S.A. presume and rely upon a functioning medical profession regulated under the states' police powers," he said, adding that "Oregon's regime is an example of the state regulation of medical practice that the C.S.A. presupposes."

Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer signed the majority opinion.

The court was clearly aware that it was venturing into "an earnest and profound debate," as Justice Kennedy noted, quoting from the court's 1997 opinion in an assisted-suicide case. In that case, Washington v. Glucksberg, the court said that the Constitution did not convey a right to assistance in dying, but that states were free to experiment with the issue. "The dispute before us," Justice Kennedy said, "is in part a product of this political and moral debate."

Scott McClellan, the White House press secretary, said at his briefing on Tuesday, "We are disappointed at the decision." Mr. McClellan added, "The president remains fully committed to building a culture of life, a culture of life that is built on valuing life at all stages."

    Justices Reject U.S. Bid to Block Assisted Suicide, NYT, 18.1.2006, http://www.nytimes.com/2006/01/18/politics/politicsspecial1/18scotus.html

Supreme Court Upholds

Oregon Assisted Suicide Law

January 17, 2006
By THE ASSOCIATED PRESS
Filed at 10:44 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court, with Chief Justice John Roberts dissenting, upheld Oregon's one-of-a-kind physician-assisted suicide law Tuesday, rejecting a Bush administration attempt to punish doctors who help terminally ill patients die.

Justices, on a 6-3 vote, said the 1997 Oregon law used to end the lives of more than 200 seriously ill people trumped federal authority to regulate doctors.

That means the administration improperly tried to use a federal drug law to prosecute Oregon doctors who prescribe overdoses. Then-Attorney General John Ashcroft vowed to do that in 2001, saying that doctor-assisted suicide is not a ''legitimate medical purpose.''

Justice Anthony Kennedy, writing for the majority, said the federal government does, indeed, have the authority to go after drug dealers and pass rules for health and safety.

But Oregon's law covers only extremely sick people -- those with incurable diseases, whom at least two doctors agree have six months or less to live and are of sound mind.

Tuesday's decision is a reprimand of sorts for Ashcroft. Kennedy said the ''authority claimed by the attorney general is both beyond his expertise and incongruous with the statutory purposes and design.''

''The authority desired by the government is inconsistent with the design of the statute in other fundamental respects. The attorney general does not have the sole delegated authority under the (law),'' Kennedy wrote for himself, retiring Justice Sandra Day O'Connor and Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, and Stephen Breyer.

Roberts and Justices Clarence Thomas and Antonin Scalia dissented.

Scalia, writing the dissent, said that federal officials have the power to regulate the doling out of medicine.

''If the term `legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death,'' he wrote.

The ruling backed a decision by the 9th U.S. Circuit Court of Appeals, which said Ashcroft's ''unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide.''

Ashcroft had brought the case to the Supreme Court on the day his resignation was announced by the White House in 2004. The Justice Department has continued the case, under the leadership of his successor, Attorney General Alberto Gonzales.

Scalia said the court's ruling ''is perhaps driven by a feeling that the subject of assisted suicide is none of the federal government's business. It is easy to sympathize with that position.''

Thomas wrote his own dissent as well, to complain that the court's reasoning was puzzling. Roberts did not write separately.

Justices have dealt with end-of-life cases before. In 1990, the Supreme Court ruled that terminally ill people may refuse treatment that would otherwise keep them alive. Then, justices in 1997 unanimously ruled that people have no constitutional right to die, upholding state bans on physician-assisted suicide. That opinion, by then-Chief Justice William H. Rehnquist, said individual states could decide to allow the practice.

Roberts strongly hinted in October when the case was argued that he would back the administration. O'Connor had seemed ready to support Oregon's law, but her vote would not have counted if the ruling was handed down after she left the court.

The case is Gonzales v. Oregon, 04-623.

------

On the Net:

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

    Supreme Court Upholds Oregon Assisted Suicide Law, NYT, 17.1.2006, http://www.nytimes.com/aponline/national/AP-Scotus-Assisted-Suicide.html

Court losing O'Connor's unique voice

Posted 1/16/2006 11:14 PM
Updated 1/17/2006 11:42 AM
USA TODAY
By Joan Biskupic

WASHINGTON — The first time Sandra Day O'Connor asked a question during oral arguments at the Supreme Court, she made headlines.

It was on Oct. 5, 1981, in a mundane dispute over oil and gas leasing. But it was historic enough for the Associated Press to note that the first comments from the bench by the court's first female justice came at 10:46 that morning.

This week, O'Connor, 75, is likely to ask her last question from the mahogany bench. Wednesday is the last day the court will hear arguments this month; the next round begins Feb. 21. There's a strong possibility that Samuel Alito, O'Connor's would-be successor, will have been confirmed by the Senate by then and will have taken his seat in one of the court's nine black leather chairs.

Much has been written about how the court's overall views could change once the conservative Alito replaces the moderate O'Connor.

She has been a swing vote on the divided court while crafting its positions favoring abortion rights, affirmative action in college admissions and competent counsel for criminal defendants. O'Connor's departure will probably change the ambiance of the court's oral argument sessions as well.

'My goodness!'

O'Connor, a no-nonsense Westerner, routinely asks the first question of the hour-long hearings and can be especially impatient with lawyers who give evasive answers.

She does not engage in lengthy hypothetical questions or play devil's advocate, as some of her colleagues do. She rarely jokes. A former state legislator and local judge from Arizona, she typically focuses on a dispute's implications for states' rights and asks about ways to resolve the case at hand without making broad legal statements.

She also has been known for her reproaches, sprinkled with "My goodness!" or "Goodness' sake!" When the court heard Bush v. Gore, the dispute over recounting ballots in Florida in the 2000 presidential election, O'Connor expressed impatience with voters who had not followed the directions on ballots.

As David Boies, representing Vice President Al Gore, argued that officials counting ballots should use a standard aimed at determining for whom voters really meant to vote, O'Connor declared: "Well, why isn't the standard the one that voters are instructed to follow, for goodness' sake? I mean, it couldn't be clearer."

Georgetown University law professor Mark Tushnet has said that a lawyer's chance of losing before the Supreme Court appears tied to how often his or her arguments lead O'Connor to say "Goodness." Tushnet said Monday that her exit from the bench could make cases more difficult to call.

He noted that her questions often signal her views.

"I would think that early on, Judge Alito would be more circumspect," Tushnet said. "It will be more opaque for advocates who want to count heads."

O'Connor, a Reagan appointee, was the only woman on the court from 1981 until 1993, when Clinton appointee Ruth Bader Ginsburg joined the bench. O'Connor's questions sometimes have reflected her personal experience as a woman.

In a 1989 abortion case from Missouri, lawyer Frank Susman said there was little difference in fetal "viability" — the point at which a fetus could live outside the womb — and "quickening," which is when a pregnant woman first feels the fetus move.

O'Connor, a mother of three, interjected: "Well there is a difference, is there not, in those two?"

"Yes," Susman said, in an acknowledgement to the first justice who knew precisely what quickening felt like. It is when "the woman could first detect movement," he said.

Tough questions

More recently, in another emotionally charged medical dispute, O'Connor was skeptical about the Bush administration's effort to stop Oregon from letting physicians prescribe lethal doses of drugs to terminally ill patients who wish to commit suicide.

"Well, certainly the practice of medicine by physicians is an area traditionally regulated by the states, is it not?" O'Connor asked U.S. Solicitor General Paul Clement.

"It absolutely is," Clement answered, "but -"

O'Connor cut him off, saying: "And there is nothing expressly in (federal anti-drug law) suggesting that it's designed to put in the hands of the federal government or the attorney general the regulation of the practice of medicine, is there?"

The court hasn't announced a ruling in the case.

O'Connor's emphasis of states' rights took a surprising turn in a 1999 case that produced a pair of memorable moments on the bench. The case tested whether a federal law known as Title IX, which made public schools financially liable for failing to protect students from sexual harassment by their peers.

O'Connor asked the first question: "I'm sure that schoolchildren nationwide tease each other, and little boys tease little girls ... throughout their years in school. Is every one of these incidents going to lead to some kind of lawsuit?"

In the end, however, O'Connor was the key vote as the court ruled 5-4 that schools could be forced to pay damages for failing to stop student sexual harassment.

As she read her opinion, O'Connor observed that dissenting justices had claimed that her decision would teach "little Johnny a perverse lesson" in when the federal government can intervene in the business of states and localities.

Not so, said the justice who broke the court's all-male tradition. She said her decision would ensure "that little Mary may attend class."

Court losing O'Connor's unique voice, UT, 16.1.2006, http://www.usatoday.com/news/washington/judicial/2006-01-16-court-oconnor_x.htm

Washington Memo

Alito Hearings Unsettle Some Prevailing Wisdom About the Politics of Abortion

January 16, 2006
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Jan. 15 - Just a little over a year ago, senators of both parties said publicly that it would be almost impossible for a Supreme Court nominee who disagreed openly with the major abortion rights precedents to win confirmation.

But partisans on either side now say that last week's confirmation hearings for Judge Samuel A. Alito Jr. cast doubt on such assumptions.

All eight Democratic members of the Judiciary Committee have indicated they believe that Judge Alito would threaten abortion rights. All are expected to vote against him, although the parties are still disputing the date of the committee's vote. But many concede that his confirmation is all but assured and that their party is unlikely to try to stop it through a filibuster.

"I do not see the likelihood of a filibuster, to be very candid with you," Senator Dianne Feinstein, Democrat of California and one of the most prominent abortion rights supporters on the Judiciary Committee, said Sunday on the CBS program "Face the Nation."

Ms. Feinstein said she would vote against Judge Alito, in part because of the abortion rights issue. "If you asked me who would Alito most be like, it would probably be, I'd have to say, Scalia," she said, referring to Justice Antonin Scalia, leader of the court's conservative faction, which opposes abortion rights.

But she added: "I mean, this is a man I might disagree with. That doesn't mean he shouldn't be on the court."

Some abortion rights advocates reacted with alarm.

"Dianne Feinstein's comment is very disturbing," said Kate Michelman, the former president of Naral Pro-Choice America and a witness against Mr. Alito at the confirmation hearings.

"Since the last election there seems to be less comfort, if you will, or less willingness to be very forthright or strong on a woman's right to choose," Ms. Michelman said in a telephone interview on Sunday. "It is worrisome that there wasn't more strength behind their questioning" of Judge Alito's views on abortion.

The Democrats' response to the Alito nomination is especially significant because he would succeed Justice Sandra Day O'Connor, who had been the court's swing vote on many abortion rights cases.

Judge Alito, in particular, aroused the ire of abortion rights supporters because of two memorandums he had written as a lawyer for the Reagan administration displaying deeply held disagreement with the abortion rights decisions. Abortion rights groups called the memorandums the most extensive written record of a Supreme Court nominee's opposition to the abortion rights precedents since 1987, when the Senate rejected Judge Robert H. Bork.

At the hearings, Judge Alito said he would keep an open mind about the weight of precedents in such cases, while confirming that his past writings represented his views at the time.

But Democratic strategists and officials of liberal groups opposed to confirmation said privately throughout the hearings that they did not believe that demonstrating Judge Alito's opposition to abortion rights would be enough to defeat his nomination. The handful of Democrats from socially conservative states were reluctant to be perceived as voting against him on those grounds.

The shift in the politics of the abortion rights issue was clear early in the hearings. On the first day of questioning, when the parties laid out their arguments and public opinion began to form, only two Democratic senators, Ms. Feinstein and Charles E. Schumer of New York, made abortion rights a central focus.

Senator Patrick J. Leahy of Vermont, the ranking Democrat, and Senator Edward M. Kennedy of Massachusetts, the senior member and liberal stalwart, aimed their questions primarily at other issues like presidential and executive power. And when they later returned more fully to abortion rights, they often talked more euphemistically of a right to privacy.

Republicans, in contrast, appeared to relish bringing up the subject. In the first round, the chairman of the committee, Senator Arlen Specter, Republican of Pennsylvania and a supporter of abortion rights, called abortion the "dominant issue" of the hearings. Several Republican opponents of abortion rights - Senators Jeff Sessions of Alabama, Sam Brownback of Kansas, Tom Coburn of Oklahoma, Lindsey Graham of South Carolina and Mike DeWine of Ohio - dwelled on the prospect of overturning abortion rights decisions.

In an interview on Sunday, Mr. Brownback said he was heartened by the hearings. He argued that in the 2004 elections, Republicans had showed Democrats that "we can run on abortion rights and win the public," adding, "they are trimming their sails some on it."

The apparent outcome of the Alito nomination may call into question a political assessment that Mr. Specter made after those elections. Mr. Specter said at the time that it was highly unlikely that a Supreme Court nominee who would change abortion rights precedents could be confirmed, in part because of the determined opposition of the Democrats. Some leading Democratic senators publicly agreed.

Conservatives, upset at Mr. Specter's comment, almost unseated him from the chairmanship of the Judiciary Committee.

After the hearings ended on Friday, Mr. Specter said he would vote for confirmation and declined to revisit his earlier comments. But he said it was impossible to know how Judge Alito might vote as a Supreme Court justice. He said abortion rights groups had also opposed Justice David Souter, Justice Anthony Kennedy and Justice Sandra Day O'Connor - all Republican nominees who have voted from the bench to uphold the core abortion rights precedents.

"There are weighty considerations involved in changing Roe v. Wade, very weighty considerations in modifying that principle and a woman's right to choose," Mr. Specter said.

    Alito Hearings Unsettle Some Prevailing Wisdom About the Politics of Abortion, NYHT, 16.1.2006, http://nytimes.com/2006/01/16/politics/politicsspecial1/16alito.html

Benchmark

Alito vs. Roberts, Word by Word

January 15, 2006
The New York Times
By JEFFREY ROSEN

HE has responded to many questions over the course of these hearings but he has adequately answered far too few of them."

So complained Patrick Leahy, the Democrat from Vermont, after Judge Samuel A. Alito Jr., the Supreme Court nominee, completed three days of testimony that seemed, at times, to be a torturous class in legal semantics.

Frustrated Democrats on the Judiciary Committee asked Judge Alito about precedent, trying to figure out whether he would vote to overturn Roe v. Wade. They asked about "the unitary executive," trying to figure out how much power he would turn over to a president in wartime. They asked whether he was a strict constructionist.

Judge Alito's answers rarely satisfied skeptics. But if the effort was strained, there was reason. The Supreme Court seems to be at a turning point - with contentious issues like abortion, Congressional power, affirmative action and presidential power in the balance.

While it's clear that Judge Alito is a conservative, it's not easy to figure out what kind. There are several brands of conservative legal theory. Is Judge Alito more like the late Chief Justice William H. Rehnquist, who was a pragmatist? Or more like Justice Antonin Scalia, who believes that the original meaning of the Constitution matters more than 50-year-old precedents?

Or would he walk in lockstep with the new chief justice, John G. Roberts Jr.? To many legal scholars, the different philosophies that emerged in the two hearings suggest that Judge Alito might be more conservative than Chief Justice Roberts, and might join Justices Scalia and Thomas in supporting conservative activism.

On a range of specific issues - from Congressional and executive power to the future of abortion - Judge Alito appeared to be less flexible and less pragmatic than Chief Justice Roberts. What follows is a guide to the possible differences in the most important issues they are likely to confront on the court.

Judicial Philosophy

Judge Alito: "The principles don't change. The Constitution itself doesn't change. But the factual situations change."

Judge Roberts: "I do not have an overarching judicial philosophy that I bring to every case. I tend to look at the cases from the bottom up rather than the top down."

Both nominees were asked whether they considered themselves "originalists" who believe, like Justices Scalia and Thomas, that the Constitution must be interpreted in light of the original intent of its framers. Judge Alito seemed to endorse originalism.

Chief Justice Roberts, by contrast, appeared to disavow originalism, emphasizing that he has no "overarching judicial philosophy." His explanation that he begins with the facts of a case from the "bottom up" rather than imposing a theory like originalism from the "top down" signals that he might allow for more constitutional evolution than Judge Alito.

Roe v. Wade

Alito: "If 'settled' means that it can't be re-examined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play then it is a precedent that is protected, entitled to respect."

Roberts: "It's settled as a precedent of the court, entitled to respect under principles of stare decisis."

The nominees were asked if they agreed with Chief Justice Roberts's earlier comments that Roe was the "settled law of the land." Both engaged in Clintonian hairsplitting about what, precisely, "settled" means.

Chief Justice Roberts seemed to reaffirm that Roe was a "settled precedent," but left himself wiggle room by saying that the decision was "entitled to respect" under the doctrine of stare decisis, which means "let the decision stand."

Judge Alito pointedly refused to say that Roe was "settled," leading some commentators to conclude that he might be more likely to overturn Roe v. Wade.

"I'd bet a large sum of money that Alito won't vote to retain Roe v. Wade, and I wouldn't bet a nickel on Roberts," said William Stuntz, a law professor at Harvard.

But some of Judge Alito's supporters disagree. "I don't think there's a great deal of daylight between Alito and Roberts on privacy," said Charles Fried, of Harvard Law School, who testified for both nominees and has predicted that neither would overturn Roe. "Roberts said Roe is 'settled law' and everyone took that as a commitment not to vote against it. Alito is very correct, and in his correctness he just thinks it's inappropriate to give that kind of commitment."

Congressional Power

Alito: "I think that Congress's ability to reason is fully equal to that of the judiciary."

Roberts: "I don't think the court should be taskmaster of Congress. And I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact-finding."

In both confirmation hearings, Democratic and Republican senators expressed concern about the Rehnquist Court's willingness to strike down acts of Congress. At issue is the scope of Congress's power to regulate interstate commerce.

In a series of 5-to-4 decisions, conservative justices have overturned federal laws that they said did not substantially affect interstate commerce, like laws regulating guns in schools or violence against women.

Chief Justice Roberts's suggestion that Congress has more "institutional competence" than the Supreme Court to engage in "fact-finding" indicates that he would be more deferential to Congress than Judge Alito would. Chief Justice Roberts went out of his way to emphasize that the Supreme Court, unlike Congress, is ill equipped to make policy judgments or predictions about the economic effects of laws.

Chief Justice Roberts "might even be more deferential than Chief Justice Rehnquist and Sandra Day O'Connor, who often joined Justices Scalia and Thomas and Kennedy in imposing strict limits on federal power," said John Yoo, a law professor at the University of California at Berkeley.

Executive Power

Alito: "The whole issue of the extent of the president's authority to authorize the use of military force without Congressional approval has been the subject of a lot of debate."

Roberts: "If the executive has acted unconstitutionally, [courts] have the obligation to block the executive action."

The most controversial question in the Alito hearings was the scope of a theory that some scholars call the "unitary executive."

In its weak form, this theory says the president has the power to fire executive branch officials, like the independent counsel. In its more aggressive form, advanced by scholars like Professor Yoo, the unitary executive theory says the president has broad authority to act in wartime without checks by Congress or the courts.

Not all conservatives agree: Justice Scalia, for example, has said that the president needs explicit authorization from Congress to suspend habeas corpus, while Justice Thomas says the president has broad authority to act without constraint.

"I don't see a lot of daylight between Alito and Roberts on executive power issues," said Professor Yoo. "I think they would be closer to Chief Justice Rehnquist, who said we are at war, Congress has authorized the war and that authorization gives the president all the traditional powers."

Other scholars detect more of a difference, noting that Judge Alito at one point mischaracterized a famous opinion by Justice Robert Jackson imposing limits on presidential power. "I think Roberts was more comfortable with the idea of deciding a presidential power question, while Alito was a little less sure of his ability to be able to rein in a president," said John Barrett of St. John's Law School. "Each judge is clearly a believer in executive power, but Roberts feels a little more comfortable being assigned to limit it than Alito does right now."

Jeffrey Rosen is the author of the forthcoming "The Most Democratic Branch: : How the Courts Serve America."

    Alito vs. Roberts, Word by Word, NYT, 15.1.2006, http://www.nytimes.com/2006/01/15/weekinreview/15rosen.ready.html

The Overview

Wider Fight Is Seen

as Alito Victory Appears Secured

January 14, 2006
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Jan. 13 - Democrats and Republicans say Judge Samuel A. Alito Jr.'s confirmation to the Supreme Court is all but certain, yet the fight over his nomination heated up on Friday as both sides seized on it as a flashpoint for Senate races in the fall and future court selections.

Despite growing certainty about the ultimate conclusion after five days of hearings, interest groups on both sides announced plans on Friday to spend hundreds of thousands of dollars on television commercials intended to influence the outcome.

And within moments of dismissing the last witnesses on Friday, Republicans and Democrats on the Judiciary Committee traded accusations of bad faith in a dispute over when the committee and the Senate would vote on confirmation.

Officials of liberal groups insisted that they still held hope of blocking confirmation. Conservative organizers, on the other hand, said privately that their advertisements were partly a victory lap to call attention to a fight the president was winning after a spate of setbacks.

But behind the new advertisements and the partisan bickering are also political calculations about how the vote may play out in this year's Senate races, and about what kind of benchmark the vote count will set for the next Supreme Court vacancy.

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, declared his support for Judge Alito on Friday and said he expected a party-line vote of the committee's 10 Republicans and 8 Democrats. But after the committee votes, Mr. Specter predicted, the politics of the final vote will be messier.

"They will get out that big map with red and blue, and where President Reagan did well, and who is up for election, and what happened to Senator Daschle," Mr. Specter said, referring to Senator Tom Daschle of South Dakota, the former Democratic majority leader who led fights against Republican judicial nominees and was defeated in 2004 by a conservative Republican who made that an issue.

It will be "all that sort of high level principle," Mr. Specter said.

Members of both parties said that the number of votes that Judge Alito received would help lay groundwork for the selection and reception of the next court nominee. Republicans have often cited the 78 votes to confirm Chief Justice John G. Roberts Jr. last year as evidence that President Bush's judicial picks are in the mainstream.

"Make no mistake about it," said Senator Charles E. Schumer, Democrat of New York and a member of the Judiciary Committee, "had we not put up the fight we put up with the judicial nominations all along, you would have more conservative people on the Supreme Court."

Officials of the liberal groups acknowledged the goal of laying groundwork, but insisted they were still building momentum to defeat Judge Alito's confirmation.

"Rather than talking about '06, rather than talking about the next nomination, we have got the Alito nomination before us," said Wade Henderson, executive director of the Leadership Conference on Civil Rights and a leader of the anticonfirmation effort.

The coalition, which also includes organized labor and abortion rights and environmental groups, said on Friday that it planned to broadcast advertisements that quoted from Judge Alito's testimony. The commercials are scheduled to run over the next week on national news programs and in Washington.

On the other side, Progress for America, a group with close ties to the Republican Party and the White House, said it would spend almost $250,000 on a national television advertising campaign that would call Democrats "shameful" for their attacks on Judge Alito.

Chris Myers, executive director of the group, said liberal groups and Democratic senators "will continue to scratch and claw up until the very, very end, so we can't pop the Champagne corks."

Democratic senators and aides conceded privately, however, that confirmation was almost a foregone conclusion. Only 2 of the 55 Republican senators - Olympia J. Snowe of Maine and Lincoln Chafee of Rhode Island - have signaled serious concerns about the nomination. And in an interview this week, Senator Richard J. Durbin of Illinois, the Democratic whip, acknowledged that it would not be easy to hold together enough Democrats to stop the confirmation with a filibuster, blocking the vote by a procedural move that requires 41 votes.

Senator Ben Nelson of Nebraska, one of seven Democrats who signed a bipartisan pact foreswearing judicial filibusters except in "extraordinary circumstances," said this week that he did not see major reasons to oppose Judge Alito. And in an interview on Friday, another one of the seven, Senator Kent Conrad of North Dakota, said, "I don't think he'll have the votes that Judge Roberts had, but I think he'll be confirmed."

Still, strategists for both parties said they hoped to use the continuing debate over Judge Alito as a weapon in the fall, noting that midterm elections usually depend on turning out the party faithful and that the nomination battle had made Judge Alito the kind of polarizing figure who galvanized such voters.

Democrats and liberal groups said they were taking aim at Mr. Chafee, Ms. Snowe and Senator Mike DeWine, Republican of Ohio, all of whom are under pressure within their party to vote for confirmation but also face re-election in socially liberal or at least closely divided states. Republicans, meanwhile, said they were calling attention to the liberal Democratic attacks on Judge Alito to squeeze moderate Democratic senators like Mr. Nelson, Mr. Conrad, Senator Bill Nelson of Florida and Senator Robert C. Byrd of West Virginia. All four are up for re-election in conservative states.

So far neither side of the Senate shows any signs of easing up. As he dismissed the last round of witnesses on Friday, Mr. Specter opened a new debate, accusing Democrats of breaching a "good-faith understanding" that the committee would vote on Judge Alito next Tuesday so that the full Senate could vote by the end of the week.

But Jim Manley, a spokesman for Senator Harry Reid of Nevada, the Democratic leader, said the Democrats had never given up their right to a temporary delay. Mr. Reid, Mr. Manley said, had asked Democrats to wait to cast any votes until after the party met on Wednesday.

"The members have a right to carefully deliberate," Mr. Manley said. "It is an important nomination."

Wider Fight Is Seen as Alito Victory Appears Secured, NYT, 14.1.2006, http://www.nytimes.com/2006/01/14/politics/politicsspecial1/14confirm.html

News Analysis

Few Glimmers

of How Conservative Judge Alito Is

January 13, 2006
The New York Times
By ADAM LIPTAK

WASHINGTON, Jan. 12 - In over 18 hours responding to some 700 questions at his Supreme Court confirmation hearings before the Senate Judiciary Committee, Judge Samuel A. Alito Jr. mostly described a methodical and incremental approach to the law rooted in no particular theory.

But to the extent Judge Alito claimed a judicial philosophy, it aligned him with the court's two most conservative members, Justices Antonin Scalia and Clarence Thomas.

Judge Alito completed his testimony Thursday amid substantial opposition from Democrats, who indicated they would not support him, but saw little chance of blocking his confirmation. [Page A15.]

On one of the few occasions Judge Alito spoke about his general approach to the law, he embraced a mode of constitutional interpretation, originalism, and often associated with Justices Scalia and Thomas.

"In interpreting the Constitution," Judge Alito said Wednesday, "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption."

Chief Justice John G. Roberts Jr., by contrast, described a more eclectic and dynamic approach to constitutional interpretation at his confirmation hearings in September. Justice Sandra Day O'Connor, whom Judge Alito will replace if he is confirmed, has also embraced a variety of approaches.

"Judge Alito sounded less amenable to constitutional evolution than Roberts," said Cass R. Sunstein, a law professor at the University of Chicago who studied Judge Alito's dissenting opinions at the request of Senator Edward M. Kennedy, Democrat of Massachusetts, but has taken no position on the nomination. "He is someone who is more likely to vote with Justice Scalia and Justice Thomas than Justice O'Connor."

On more specific constitutional issues, Judge Alito affirmed what Jack M. Balkin, a law professor at Yale, calls the modern catechism necessary for confirmation. Judge Alito said that Brown v. Board of Education, the 1954 school desegregation case, was correctly decided. He said the Constitution protected privacy in at least some aspects of procreation, endorsing two decisions giving constitutional protection to the use of contraceptives. And he said the principle of one person one vote is required by the Constitution.

Having agreed with those cases and propositions, though, Judge Alito largely drew the line at saying more, notably about abortion. He justified his approach by saying the first set of cases were unlikely to come before the Supreme Court and that other cases might well be revisited by it.

But he did provide some hints on an array of other issues. He rejected, for instance, the use of foreign legal materials in interpreting the Constitution. He said he had favored allowing cameras in the courtroom in his own court, the United States Court of Appeals for the Third Circuit, in Philadelphia.

On Thursday, he said he "can't think of a reason why" Congress could not outlaw employment discrimination against gay men and lesbians. And he said that a diverse student body was an important value in education.

It was the topics Judge Alito failed to discuss that concerned some scholars the most. Some questioned whether he had really drawn a principled line between the cases he viewed as finally settled, and so could discuss, and those he considered still to be in play.

Some of the cases and principles Judge Alito would discuss, said Vikram Amar, a professor at Hastings College of the Law in San Francisco, could "very easily come up over the next decade in the court, let alone the next three decades." Among the examples Mr. Amar gave were the use of foreign legal materials, a 1952 opinion on presidential power and diversity in education.

What Judge Alito would and would not discuss was telling, said Mark Tushnet, a law professor at Georgetown.

"You can infer from the areas in which he is willing to talk and not willing to talk," said Mr. Tushnet, who opposes Judge Alito's confirmation. "The only inference you can draw is that he doesn't agree with the abortion decisions."

Senator Joseph R. Biden Jr., Democrat of Delaware, asked Judge Alito on Thursday whether he shared the aggressive views of executive power discussed in a recent book by John Yoo, an architect and forceful advocate of the Bush administration's legal strategy in the aftermath of the Sept. 11 attacks. Judge Alito said he had not read the book, "The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11." But some of Judge Alito's answers suggested that he would not take as hard a line as Professor Yoo, who now teaches law at the University of California, Berkeley.

Notably, Judge Alito endorsed a 1952 concurring opinion by Justice Robert H. Jackson rejecting President Harry S. Truman's assertion that he had the inherent constitutional authority to seize steel mills during the Korean War. The opinion, in Youngstown Sheet and Tube Company v. Sawyer, set out a three-part sliding scale for considering clashes between presidential power and Congressional authority.

The president's power is at its "lowest ebb," Justice Jackson wrote, when Congress has forbidden a particular action. The administration has conceded that its domestic surveillance program violated the terms of a 1978 law requiring court approval for some intelligence gathering, arguing that it had authority to conduct the surveillance without warrants under both the Constitution and a Sept. 18, 2001, Congressional authorization to use military force.

In an interview Thursday, Professor Yoo said the balancing called for by the Jackson concurrence did not apply to the surveillance program.

"The Jackson concurrence applies to domestic matters which are outside the theater of combat," he said. The surveillance program, by contrast, is partly international, he said, and the theater of combat after the Sept. 11 attacks encompasses the United States.

Noah Feldman, a law professor at New York University, said the differing interpretations of the applicability of the Jackson concurrence were significant.

"It's very striking," Professor Feldman said, "that both Judge Alito and Chief Justice Roberts said they would apply Justice Jackson's concurrence in the steel seizure case, because it reflects a view of presidential power that is not unbounded and is not the strongest version of the unitary executive theory. If you were truly to follow Youngstown, you can't embrace the strongest version of the unitary executive theory."

Judge Alito endorsed a version of the unitary executive theory in a 2000 speech to the Federalist Society, a conservative legal group. The theory can mean, in its weaker form, that the president has full authority over the executive branch. In its stronger form, the theory means that there are areas of executive power into which Congress and the courts are powerless to intrude.

Professor Yoo said that what he called "the robust version" of the theory could conclusively answer the legal controversy over the surveillance program. "If gathering intelligence about the enemy is executive, then it can't be taken away" by Congress or the courts, he said.

At the hearings, Judge Alito embraced the weaker version. For Judge Alito, said Douglas W. Kmiec, a law professor at Pepperdine who served in the Justice Department in the Reagan administration, the unitary executive theory "goes more to the direction of fully executive subordinates than any type of claim of executive supremacy, which Alito has rightly denied."

If anything, Professor Kmiec continued, Judge Alito "has an understanding of executive power that is so well within the mainstream that Alexander Hamilton might think it timid."

Judith Resnick, a law professor at Yale, disagreed.

"He's fabulous at tautology," Professor Resnick said of Judge Alito. "He says the president is not above the law. He says the president can only do what the Constitution allows him to do. But he doesn't say what the Constitution allows."

"One of the absolutely essential questions of American law at the moment is the ability of any human being to call the executive branch to account before the courts," she added, noting that Justice Sandra Day O'Connor had affirmed that principle in a 2004 opinion allowing an American citizen to challenge his detention by the military. "That possibility must be available. What we have not heard from Judge Alito is a commitment to that point of view."

Judge Alito did indicate that he would take a relatively deferential view of Congressional power. "I would certainly approach the question of determining whether an act of Congress is constitutional with a heavy presumption in favor of the constitutionality of what Congress has done," he said on Thursday.

In the end, Judge Alito drew the line in what he would discuss almost exactly where Chief Justice Roberts had in his confirmation hearings in September. The similarity of the two men's positions should not be surprising, Professor Yoo said, as they were both government lawyers when Edwin Meese III served in the White House and the Justice Department in the Reagan administration.

"It shows the fruition," Professor Yoo said, "of the Reagan-Meese approach of grooming young lawyers in the 1980's who could do well at hearings 20 years later."

Few Glimmers of How Conservative Judge Alito Is, NYT, 13.1.2006, http://www.nytimes.com/2006/01/13/politics/politicsspecial1/13legal.html

The Overview

After Alito's Testimony,

Democrats Still Dislike Him

but Can't Stop Him

January 13, 2006
The New York Times
By ADAM NAGOURNEY and NEIL A. LEWIS

WASHINGTON, Jan. 12 - Judge Samuel A. Alito Jr. completed his testimony at his Supreme Court confirmation hearings on Thursday to a blast of opposition from Democrats, who signaled they would not support him. They also indicated, however, that they saw little chance of blocking his confirmation, even with a filibuster.

Several Democratic senators took the step of announcing, as Judge Alito sat before them, that they had been alienated by his 18 hours of testimony, which left them with doubts about his credibility, as well as deep concern about his record on abortion rights and his views on the White House's effort to expand the definition of executive power.

It seemed clear that Judge Alito, in contrast to John C. Roberts Jr., will draw few if any Democratic votes in the committee, and when his nomination goes to the full Senate.

"As your testimony in these hearings come to a close, I just have to tell you that I remain very troubled, not by anything in your personal history, so much as by your judicial views," said Senator Charles E. Schumer, Democrat of New York. "Unfortunately, by refusing to confront our questions directly and by giving us responses that really don't illuminate how you really think, as opposed to real answers, many of us have no choice but to conclude that you still embrace those views completely or in large part."

The committee's ranking Democrat, Senator Patrick J. Leahy of Vermont, said after the hearing, "I continue to be worried - and I pressed the questions again today as I have all week long - he is not clear that he would serve to protect America's fundamental rights."

Republicans, satisfied by the course of the hearings, disputed the Democratic characterization, arguing that Judge Alito had systematically answered questions posed to him dealing with the concerns of his opponents.

"I have to say, I deplored - really deplored - some of the tactics that have been used in this hearing," said Senator Orrin G. Hatch, Republican of Utah. He said Judge Alito "has answered more questions in more definitive ways than any Supreme Court nominee in my 29 years here in the United States Senate."

The hearings are expected to end on Friday. Senate aides said they expected the committee, which is made up of 10 Republicans and 8 Democrats, to split along party lines when it votes in the next 10 days. Judge Roberts drew 3 Democratic votes.

Democrats have blocked some of President Bush's nominations to federal court positions using a filibuster or threat of extended debate, but some Democrats and Republicans said they would agree to a filibuster only in extraordinary circumstances. Democrats said it was unlikely they could assemble the support needed for a filibuster, but said they would decide next week.

Robert Stevenson, a spokesman for Senator Bill Frist of Tennessee, the majority leader, said nothing had emerged from the Alito hearings that would remotely justify the Democrats' seeking a filibuster.

The chances of a Democratic filibuster faded after the third day of hearings, as a spokeswoman for Senator Olympia Snowe of Maine, a moderate Republican, announced that Ms. Snowe would oppose it. Her decision is pivotal because she was one of seven Republicans who had joined an earlier successful effort to block Republican leaders from changing Senate rules to prevent filibusters against judicial nominations.

President Bush called Judge Alito from Air Force One after the hearing to congratulate him, according to a White House spokesman, Scott McClellan. The president told Mr. Alito he "showed great class" during the questioning, Mr. McClellan said.

In the final hours of their questioning, Democrats pressed Judge Alito on his views on executive power, his failure to recuse himself in a case involving Vanguard, the mutual fund firm that handles his private investments, and his membership in a Princeton association that opposed affirmative action policies at the university.

In an unusual move that drew criticism from Democratic senators and some former judges, several federal judges from Judge Alito's court - some sitting and some retired - appeared before the committee.

Judge Edward R. Becker, the former chief judge of the United States Court of Appeals for the Third Circuit based in Philadelphia, said he and his fellow judges believed Judge Alito would be a superb justice.

"He is brilliant. He is highly analytical and meticulous and careful in his comments and his written work," Judge Becker said.

Judge Becker said that although testimony from a judge's colleagues was unusual, he thought it valuable because they know him best. But the practice of sitting judges endorsing a nomination drew criticism. Several Democrats said Judge Alito could well find himself, on the Supreme Court, passing judgments on the lower court rulings of many of the judges who told the Senate on Thursday it should confirm him.

Judge Patricia M. Wald, a former appeals court judge, told reporters she thought it was unwise because it would oblige future nominees to canvass their colleagues for support.

After Judge Alito got up from the witness chair, a panel of officials from the American Bar Association, which evaluates judicial candidates on their integrity, professional competence and judicial temperament, testified about its decision to rate Judge Alito as highly qualified to be a Supreme Court justice.

Marna Tucker, a Washington lawyer and a member of the A.B.A. panel, said that the lawyers and people they interviewed in reviewing Judge Alito's nomination had been startled to learn of Judge Alito's ties with the Princeton alumni club that had resisted efforts to enroll women and minorities at the university. She said that Judge Alito had told the A.B.A. panel, as he had told the senators, that he had no memory of being active in the organization, even though he listed his membership in the group in a 1985 application for a job in the Reagan administration.

"We specifically asked him if this was to - since it was a job application, that was he pandering?" she said. "And he said it would be improper to not tell the truth on an application."

But, she said, "All of the people we spoke to on the courts - women and minorities, people who he had worked with, people who had sat on panels with him side by side in issuing judicial opinions - almost universally said that they saw no bigotry, no prejudice. They thought he was a fair man."

Senator Arlen Specter, Republican of Pennsylvania and chairman of the committee, said at the start of Thursday's hearing that Republican and Democratic lawyers had spent the night examining documents from William A. Rusher, an early leader of the Princeton group, at the Library of Congress, and had found no mention of Judge Alito. "Judge Alito's name never appeared in any document," Senator Specter reported.

After Alito's Testimony, Democrats Still Dislike Him but Can't Stop Him, NYT, 13.1.2006, http://www.nytimes.com/2006/01/13/politics/politicsspecial1/13confirm.html

US asks top court

to dismiss Guantanamo case

Thu Jan 12, 2006 10:13 PM ET
Reuters
By James Vicini

WASHINGTON (Reuters) - The Bush administration urged the U.S. Supreme Court on Thursday to dismiss a challenge to President George W. Bush's power to create military tribunals to put Guantanamo prisoners on trial for war crimes.

The administration's argument was based on a law signed by Bush on December 30 that limits the ability of Guantanamo prisoners caught in the president's war on terrorism to challenge their detentions in federal courts.

Administration lawyers said the new law applied to the Supreme Court case of Salim Ahmed Hamdan, a Yemeni accused of being Osama bin Laden's bodyguard and driver.

He had challenged the military tribunals before his actual trial, but administration lawyers said that under the new law he could bring a court appeal only after the commission proceedings against him had been completed.

The Hamdan case is considered an important test of the administration's policy in the war on terrorism. The tribunals, formally called military commissions, were authorized by Bush after the September 11 attacks and have been criticized by human rights groups as being fundamentally unfair.

There are about 500 suspected al Qaeda and Taliban prisoners at the U.S. military base at Guantanamo Bay in Cuba. Charges have been brought against nine people, including Hamdan. Pretrial hearings were held in two cases this week.

The administration cited the same new law in moving last week to dismiss more than 180 cases in U.S. district court in Washington involving Guantanamo inmates who have challenged their detention.

The legislation signed by Bush on December 30 bans cruel and inhumane treatment of prisoners. The anti-torture law also curbs the ability of prisoners being held at the U.S. Naval Base in Cuba to challenge their detention in federal court.

HAMDAN LAWYERS SAY CASE CAN GO AHEAD

One of Hamdan's attorneys, Neal Katyal, had no immediate comment on the Justice Department's motion to dismiss the case.

Hamdan's lawyers previously told the high court the new law did not prevent the justices from considering the merits of his claims.

They also filed a request for habeas corpus relief directly with the Supreme Court in a bid to get around the jurisdictional problems and make sure the case can go forward.

It was not known when the court would decide whether to dismiss the case.

Justice Department lawyers told the Supreme Court that Hamdan's appeal should be dismissed without reaching the merits of the issue because of a lack of jurisdiction.

"Under well-settled principles, Congress's decision to remove jurisdiction over this action and others must be given immediate effect," Solicitor General Paul Clement said in 23-page motion filed with the Supreme Court.

"By establishing an exclusive review procedure for military commission challenges, Congress has made plain its judgment that judicial review of military commission proceedings should occur only after those proceedings have been completed," he said.

Department lawyers said Hamdan under the new law may seek review in the U.S. appeals court in Washington of any final decision rendered against him by a military commission.

(Additional reporting by Deborah Charles)

    US asks top court to dismiss Guantanamo case, R, 12.1.2006,
http://today.reuters.com/News/
newsArticle.aspx?type=topNews&storyID=2
006-01-13T031312Z_01_DIT275081_RTRUKOC_0_US-SECURITY-COURT.xml

Tone Is Calmer

as Alito Begins Final Round of Questioning

January 12, 2006
The New York Times
By RICHARD W. STEVENSON
and JOHN O'NEIL

WASHINGTON, Jan. 12 - Democrats focused on presidential powers and the relationship between the courts and Congress as the final round of questioning of Judge Samuel A. Alito Jr. began today.

The mood in the hearing room in the Hart Senate Office Building was far more subdued than in the first three days of the hearing on his nomination to the Supreme Court.

But even as the discussion moved away from the contentious topics of abortion and charges that Judge Alito had been misleading in describing his relationship with a group of conservative Princeton alumni, the judge continued to frustrate Democratic senators trying to pin down his views. Instead, he offered calm and detailed descriptions of prior Supreme Court decisions or legal debates.

Senator Arlen Specter of Pennsylvania, the Republican chairman of the Judiciary Committee, opened the session by reporting the results of an overnight review by staff members of documents from the Princeton alumni group.

Senator Specter had agreed late Wednesday to obtain the documents after Democrats complained about inconsistencies in Judge Alito's description of his ties to the group, which has been characterized as opposing coeducation and affirmative action.

"Mr. Alito's name never appeared in any document," Mr. Specter said.

The Democrats were the main questioners during the morning session, using their time allotted for follow-up questions, while most Republicans waived their opportunities. The committee is divided between 10 Republicans and 8 Democrats.

Senator Patrick J. Leahy of Vermont, the ranking Democrat on the panel, asked whether Congress could strip the Supreme Court of its right to hear appeals on certain topics, making a reference to the Terri Schiavo case, in which Congress passed a law directing the federal courts to consider a matter that Supreme Court decisions had left to the states. He also mentioned efforts by the House of Representatives to cut off money needed to enforce court decisions with which members did not agree.

"If Congress can grandstand the way it did on the Schiavo case, you have to wonder what else can come down," he said.

Judge Alito responded that there was a debate among legal scholars on the topic.

"Have you taken part in the debate?" Senator Leahy asked.

"No," Judge Alito said.

"Would you like to take part in the debate?" Senator Leahy continued.

"Not at this time," Judge Alito replied, drawing laughter.

"I don't know why that doesn't surprise me," Mr. Leahy said.

Senator Joseph R. Biden Jr., the Delaware Democrat, asked Judge Alito about what he called the Bush administration's sweeping views of presidential power. Mr. Biden read from a book by John Yoo, a law professor who formulated some of the most forceful arguments for that view when he worked in the Justice Department between 2001 and 2003.

Mr. Biden asked if Judge Alito agreed with Mr. Yoo's statement that Congress's only brake on the president's war-making power was its ability to cut off money.

"I hope I haven't left you with that impression," Judge Alito replied. "I haven't read his book."

When Mr. Biden pressed him on the question, Judge Alito said he had not studied these issues in depth. "It's not my practice just to issue an opinion on a constitutional question, particularly on such a momentous question as this," he said.

Senator Edward M. Kennedy, the Massachusetts Democrat, asked Judge Alito about a speech he gave in 2000 to a meeting of the Federalist Society, a conservative legal group, outlining the theory of a unitary executive, which takes an expansive view of presidential powers.

Mr. Kennedy said that Judge Alito's criticism in that speech of the Supreme Court decision upholding the law creating independent prosecutors implied that agencies now regarded as independent, like the Federal Reserve and the Consumer Product Safety Commission, should come under the president's sway.

Judge Alito responded that he regarded the court decision as part of a line of precedents that was well established.

While most of this morning's session focused on presidential power, Mr. Biden followed up on a key question in the discussion of abortion. While Judge Alito has said that Roe v. Wade, the 1973 decision legalizing the procedure, is entitled to deference under the theory of stare decisis, which says that precedents should not be lightly overturned, he has declined to go as far as Chief Justice John G. Roberts Jr. did in his confirmation hearing, in which he described Roe as "settled law."

Judge Alito, who described Roe in a 1985 memo, when he worked in the Reagan administration Justice Department, as "wrongly decided," has told senators that he would approach abortion cases with an open mind.

Mr. Biden pressed Judge Alito, citing Justice Antonin Scalia's assertions that a belief that Roe was decided incorrectly was reason enough to consider reversing it.

"My view is that you need a special justification for overturning a prior precedent," Judge Alito said, and that the bar was raised when a ruling had been reaffirmed and long relied on, as Roe has.

"But it's not an inexorable command," he went on, citing the ruling permitting segregation that was overturned in Brown v. Board of Education.

"There has to be the ability to revisit a case like Plessy v. Ferguson," he said.

On Wednesday, the give and take had focused far more on abortion.

Rebutting Judge Alito's statement on Tuesday that he would take to the court an "open mind" on abortion rights, Senator Richard J. Durbin, Democrat of Illinois, said the memorandum that Judge Alito wrote in 1985 stating that he did not believe that there was a constitutional right to abortion "evidences a mind that, sadly, is closed in some areas."

The partisan volleys seemed to sail over or past Judge Alito, who politely but resolutely declined to be drawn out on abortion, executive authority and other issues. He often sat impassively as the committee members debated his qualifications and forthrightness.

"Your critics are, I think, grasping at any straw to tarnish your record, and that's unfortunate," Senator Charles E. Grassley, Republican of Iowa, said.

The Democrats' questions and implications about her husband's record appeared to get to Judge Alito's wife, Martha-Ann. She began crying as Senator Lindsey Graham, Republican of South Carolina, defended her husband's character and rejected any suggestion that his membership in the alumni group made him a bigot, Mrs. Alito retreated to an anteroom, sobbing for some minutes.

"Let me tell you, this guilt by association is going to drive good men and women away from wanting to sit where you're sitting," Mr. Graham said.

Democrats and their aides on the committee said they were resigned to the fact that Judge Alito would win approval on the committee with its 10-member Republican majority. All eight Democrats appear likely to vote against the nomination.

The Democrats' strategy appeared to be aimed at raising questions about the credibility of Judge Alito's explanations about the alumni group and recusal that could be used in the confirmation floor debate.

The most intensive substantive exchanges were again over abortion. Judge Alito repeatedly turned aside efforts by Mr. Durbin and other Democrats to have him to agree that Roe v. Wade, the 1973 Supreme Court decision that established that there is a constitutional right to abortion, was "settled law," a phrase that Chief Justice Roberts assented to last year in his confirmation hearings. Judge Alito agreed only with the proposition that Roe was an important precedent that should be given deference like any other precedent relevant to a constitutional dispute.

"It is a precedent that has now been on the books for several decades," Judge Alito said. "It has been challenged. It has been reaffirmed. But it is an issue that is involved in litigation now at all levels."

Mr. Durbin responded that he was "concerned that many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion, that would make it illegal in this country, would criminalize the conduct of women who are seeking to terminate pregnancies for fear of their lives and the doctors who help them."

Overturning Roe would not make abortion illegal but would leave the question in the hands of states.

In a colloquy with Senator Dianne Feinstein, Democrat of California, Judge Alito sought to explain why he agreed to comment on other landmark cases like those that outlawed segregation and guaranteed one-person, one-vote, but would not engage in a discussion of Roe.

Ms. Feinstein asked whether Judge Alito did not agree that Roe "was well settled in court."

He said, "It depends on what one means by the term 'well settled.' "

Ms. Feinstein said that she understood that it was difficult to answer such a sensitive question, "but the people are entitled to know."

Judge Alito said it was reasonable to presume that school desegregation and one person, one vote were beyond judicial debate, while aspects of the abortion issue continued to come before the courts.

"I don't think it's appropriate for me to speak about issues that could realistically come up." he said. "And my view of Brown v. Board of Education, for example, which was one of the cases that was cited in connection with this issue about where someone in my position should draw the line, seems to me to embody a principle that is now not subject to challenge, not realistically subject to being challenged."

Democrats made another attempt to link Judge Alito to the views of some members of the Concerned Alumni of Princeton, a group that Judge Alito listed being a member of when he applied for a job in the Reagan administration.

Senator Kennedy read from an essay published in 1983 in a magazine put out by the group.

"Everywhere one turns, blacks and Hispanics are demanding jobs simply because they're black and Hispanic, the physically handicapped are trying to gain equal representation in professional sports, and homosexuals are demanding that government vouchsafe them the right to bear children," the essay said, according to Mr. Kennedy.

Mr. Kennedy asked whether Judge Alito had read the essay. Judge Alito responded that he had not, that he had not known at the time that members of the group espoused such views and that the sentiments expressed in the passage read by Mr. Kennedy were antithetical to his.

Mr. Kennedy suggested that Judge Alito had not provided an adequate explanation of why he had joined the group and included it in an application for work in a conservative administration. The senator said that he had questions about "this sort of radical group and why you listed it on your job application" and that Judge Alito's explanations did not "add up."

Mr. Kennedy, seemingly trying to inject some vigor into a lagging effort to defeat the nomination, provoked a confrontation with Mr. Specter by demanding that the chairman take the committee into executive session to subpoena documents about the group in the Library of Congress.

Mr. Specter, annoyed, said he would consider the issue, suggesting that Mr. Kennedy delayed his request to present it at the hearing for dramatic effect. After lunch, Mr. Specter announced an agreement to review the documents and said Democratic and Republican lawyers had gone to the library to study them.

The New York Times previously reviewed the documents, which are in the papers of William A. Rusher, an early leader of the group and a former publisher of National Review. The Times reported in November that the documents and others at Princeton gave no indication that Judge Alito was among the major donors to the group and was not active in it. In an online interview on Wednesday with National Review, Mr. Rusher said he did not remember Judge Alito.

"He certainly was not very heavily involved in CAP, if at all," he said.

Senator Biden raised the possibility that Judge Alito had noted his membership as a way to signify his conservative leanings and enhance his chances of being hired.

In later comments to Senator Charles E. Schumer, Democrat of New York, Judge Alito appeared to accept that explanation.

"I was applying for a position in the Reagan administration, and my answers were truthful statements." he said when Mr. Schumer asked why he listed the Princeton group as one of just two groups to which he belonged. "But what I was trying to outline were the things that were relevant to obtaining a political position. I mentioned some very minor political contributions. I didn't mention contributions to charitable organizations."

Richard W. Stevenson contributed reporting from Washington for this article, and John O'Neil contributed reporting from New York. Neil A. Lewis contributed from Washington.

    Tone Is Calmer as Alito Begins Final Round of Questioning, NYT, 12.1.2006, http://www.nytimes.com/2006/01/12/politics/politicsspecial1/12cnd-confirm.html?hp

    Related > Transcript > Senate Confirmation Hearings - Day 1 > http://www.nytimes.com/2006/01/09/politics/politicsspecial1/text-alito-day1.html?pagewanted=all

    Related > Transcript > Senate Confirmation Hearings - Day 2 > http://www.nytimes.com/2006/01/10/politics/politicsspecial1/text-day2.html?pagewanted=all

    Related > Transcript > Senate Confirmation Hearings - Day 3 > http://www.nytimes.com/2006/01/11/politics/politicsspecial1/day3-text.html?pagewanted=all

    Related > Transcript > Senate Confirmation Hearings - Day 4 > http://www.nytimes.com/2006/01/12/politics/politicsspecial1/day4-text.html

    Related > Transcript > Senate Confirmation Hearings - Day 5 > http://www.nytimes.com/2006/01/12/politics/politicsspecial1/day5-text.html

A 1986 Case Could Aid Appeals

Along Death Row

January 12, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Jan. 11 - An argument before the Supreme Court in a 20-year-old murder case suggested on Wednesday that the court might be willing to open the door a bit wider to death row inmates seeking access to federal court to present plausible but belated claims of innocence.

It was a gritty argument with an unusually intense focus on the evidence that a Tennessee jury considered in convicting Paul G. House of the murder of a neighbor, Carolyn Muncey. Justices Antonin Scalia and Stephen G. Breyer were particularly steeped in the details and were deeply engaged on opposite sides of the case, debating it back and forth almost to the exclusion of the lawyers standing before them.

Mr. House has always maintained his innocence, and in 2004 he came within one vote of persuading a federal appeals court to reopen his case. The debate on the appeals court was over whether recently developed scientific evidence had cast enough doubt on the basis of his conviction to overcome the very high bar that the Supreme Court has set for federal courts to hear new claims that were not presented in the initial round of appeals.

The vote against Mr. House, in the United States Court of Appeals for the Sixth Circuit, in Cincinnati, was 8 to 7; all eight judges in the majority had been appointed by Republican presidents, and all seven dissenters had been named by Democrats. Six of the dissenters concluded that Mr. House had proved his innocence, while the seventh said that he was at least entitled to a new trial.

Addressing Mr. House's lawyer on Wednesday, Justice Scalia said he agreed that the case now looks "much closer" than it must have appeared to the jury in 1986. But that was not the issue, he continued. "Once the case has been tried, we have a much different task," Justice Scalia said, namely to determine "whether any reasonable jury could have found guilt."

Only if the answer was no could a federal court proceed to hear a petition for a writ of habeas corpus and consider whether constitutional errors that had not previously been identified had occurred at the trial. The Supreme Court's leading precedent on this question, a case from 1995 called Schlup v. Delo, refers to this hurdle as a "gateway" through which an inmate must pass. It is, Justice Scalia said, "a very heavy burden" for the defense to meet.

Mr. House's lawyer, Stephen M. Kissinger, replied, "It is a high burden, and we don't shrink from it."

The court's focus, Mr. Kissinger said, should now be on "the effect of the entirety of the evidence on a reasonable juror" rather than on dissecting each disputed piece of evidence.

Mr. Kissinger, an assistant federal defender from Knoxville, Tenn., challenged Justice Scalia's description of the gateway. "It comes down to the 'could' and 'would' distinction," he said. "We don't deny that there is evidence that 'could' support conviction, but that's not the test. What 'would' a reasonable juror conclude? Proof of innocence does not have to be absolute."

Underlying this argument was the question of whether the courts should adjust their rules to take account of the recent string of exonerations based on DNA evidence. Briefs filed by the Innocence Project, a legal clinic in New York, and by the American Bar Association point out that the Supreme Court decided Schlup v. Delo and other cases limiting inmates' appeal rights before DNA testing had revealed flaws in a disturbing proportion of criminal convictions. Those flaws call for new flexibility, the briefs argue.

In this case, House v. Bell, No. 04-8990, the new DNA evidence alone did not produce a clear exoneration. Rather, it substantially undermined the prosecution's theory of the case, which was that sex was the motivation for the crime and that Mr. House had killed the victim in the course of raping her.

Chemical analysis presented at the trial suggested that Mr. House's semen was found on Ms. Muncey's clothing, while DNA testing later showed it to be her husband's. The state maintains that this new evidence does not disprove that Mr. House was guilty of the murder.

The defense theory was that the husband, Hubert Muncey, was the killer. The new legal team that represented Mr. House in his habeas corpus petition produced witnesses who testified that they had heard Mr. Muncey make a drunken confession, but the federal district court discounted the evidence in rejecting the petition in 1997.

Mr. Kissinger said that if the case passed through the gateway, he would argue that Mr. House was deprived of the effective assistance of counsel at his trial and that the state withheld favorable evidence it was constitutionally obliged to produce.

Representing Tennessee at Wednesday's argument, Jennifer L. Smith, an associate deputy state attorney general, said that all of Mr. House's new evidence "fails to raise sufficient doubt" about the original verdict to get past the gateway into federal court on those or any other claims.

Now it was Justice Breyer's turn. He challenged the state's lawyer on a long list of evidentiary issues, leading Justice Scalia to interject at one point, "We could call on these witnesses ourselves and hear them all over again."

Justice Breyer said, "My goodness, I don't know who committed this crime."

Only nominally addressing Ms. Smith, Justice Scalia said: "Justice Breyer has not heard these witnesses. The district court did."

Along with Justice Breyer, Justice David H. Souter expressed strong doubts about the state's case. Justice Anthony M. Kennedy said that "at a minimum," he had questions about the death sentence if not the conviction. Justices Ruth Bader Ginsburg and John Paul Stevens said little, but if they follow Justice Breyer's lead, as is likely, there would be five votes to reopen the case, even assuming that Justice Sandra Day O'Connor, who was uncharacteristically quiet, is no longer on the court by the time a decision is issued.

Justice O'Connor's vote proved essential in a decision the court issued in another death penalty case on Wednesday, the first 5-to-4 decision since John G. Roberts Jr. became chief justice. In Brown v. Sanders, No. 04-980, the court reinstated the death sentence of a California inmate whose habeas corpus petition had been granted by the federal appeals court in San Francisco.

The appeals court had overturned the sentence because two of the four factors the jury cited in making the defendant, Ronald L. Sanders, eligible for the death penalty were later found by the California Supreme Court to be invalid. Writing for the majority on Wednesday, Justice Scalia said there was no constitutional error in the sentence because the jury was able to give proper consideration to the same facts and circumstances through the remaining, valid factors.

Chief Justice Roberts and Justices O'Connor, Kennedy and Clarence Thomas joined the majority opinion. Justices Stevens, Breyer, Souter and Ginsburg dissented.

    A 1986 Case Could Aid Appeals Along Death Row, NYT, 12.1.2006, http://www.nytimes.com/2006/01/12/politics/politicsspecial1/12scotus.html

The Cases

O'Connor Casts

a Long Shadow on the Nominee

January 12, 2006
The New York Times
By ADAM LIPTAK

WASHINGTON, Jan. 11 - The Constitution does not say what criteria the Senate should use in deciding whether to confirm a Supreme Court nominee.

But at least one clear test has emerged over the first three days of Judge Samuel A. Alito Jr.'s confirmation hearings. This nominee must, it seems, continually refer to and, if at all possible, endorse the views of the woman he aims to replace, Justice Sandra Day O'Connor.

Senators from both parties have frequently used Justice O'Connor's opinions as a basis for questioning Judge Alito. The heavy emphasis on her work is a testament to her disproportionate influence on the court in her 25 years of service, and a reminder of the important role Judge Alito will assume if he is confirmed.

As two senators noted in their opening statements, Justice O'Connor has cast the decisive vote in almost 150 cases, many of them of great moment.

Whenever the opportunity arose, Judge Alito and his supporters highlighted instances in which he had ruled as she had. He invoked her name on 9 occasions, and he had good things to say about her decisions 10 times. On Tuesday, Senator John Cornyn, Republican of Texas, ticked off areas in which the two judges had agreed.

"Justice O'Connor and Judge Sam Alito both set limits on Congress's commerce power," Mr. Cornyn said. "Sandra Day O'Connor and Sam Alito both struck down affirmative action policies that had strict numerical quotas. And both - this ought to be a shocker to some based on what we've heard here today - is that both Justice Sandra Day O'Connor and Judge Sam Alito have criticized Roe v. Wade."

Democratic senators, on the other hand, worked hard to show that Judge Alito and Justice O'Connor were at odds, particularly in an important abortion case.

In his opening statement, striking a theme that has run through the hearings, Senator Charles E. Schumer, Democrat of New York, asked rhetorically, "Are you in Justice O'Connor's mold or, as the president has vowed, are you in the mold of Justices Scalia and Thomas?"

President Bush has said he would try to appoint justices like Antonin Scalia and Clarence Thomas, the court's two most conservative members.

By Wednesday morning, Senator Tom Coburn, Republican of Oklahoma, had grown frustrated with all the O'Connor talk. "The fact that you have to fit the Sandra Day O'Connor mold is really a misapplication," he said. "There is no precedent that would say that."

Judge Alito said he would be his own person, but not before offering one more tribute. "No nominee can ever be a duplicate of someone who retires," he said, "and particularly when someone retires after such a distinguished career and such a historic career as Justice O'Connor. Nobody can be expected, as a nominee, to fit that mold."

Judge Alito gave no indication, beyond saying he respected precedent and would proceed with an open mind, about whether he would follow the joint opinion Justice O'Connor signed in Planned Parenthood v. Casey, a 1992 decision affirming the constitutional right to abortion found by Roe v. Wade in 1973. Casey was, however, a 6-to-3 decision, and Judge Alito will not be in a position to move the court away from its support of the core right to abortion.

But Justice O'Connor did provide the crucial fifth vote in the court's last major abortion ruling, in 2000, striking down Nebraska's ban on what were called "partial birth" abortions. The court will soon decide whether to hear a challenge to a similar federal law, and in that case Judge Alito could alter the course of the court's abortion jurisprudence.

Judge Alito participated in the Casey decision in 1991 as an appeals court judge, and he seemed a little defensive in explaining his dissenting vote to uphold a Pennsylvania law that required women to notify their husbands before having abortions. The Supreme Court took the opposite view the next year.

All he had been trying to do in his dissent, Judge Alito explained, was to understand what Judge O'Connor had meant in some earlier decisions.

"There were just a few hints in those opinions about what she meant," Judge Alito said. "Based on the information that I had from Justice O'Connor's opinions, it seemed to me that this was not what she had in mind. Now, that turned out not to be a correct prediction."

In another exchange, asked whether he agreed with Justice O'Connor's statement in a 2004 decision that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," Judge Alito did not hesitate.

"Absolutely," he said. "That's a very important principle."

In defending his dissent in a 10-to-1 decision of his court in an employment discrimination case, Judge Alito also invoked Justice O'Connor.

"When the issue went to the Supreme Court" in another case, he said, "Justice O'Connor wrote the opinion for the Supreme Court, and she agreed with my analysis."

In 1996, Judge Alito voted in dissent to strike down a law regulating the possession of machine guns, citing United States v. Lopez, a 1995 Supreme Court case that struck down a law banning the possession of handguns near schools.

Senator Jon Kyl, Republican of Arizona, was quick to note the lineup in the Lopez case. "By the way," Mr. Kyl said, "it was one of those decisions that Justice O'Connor was in the majority, a 5-4 decision in which her position could be characterized as the swing vote."

On Wednesday, Judge Alito said he would follow Justice O'Connor's approach in religion cases.

"Justice O'Connor pointed out something that's very critical in this area," he said. "She said there is a big difference between government speech endorsing religion and private religious speech. And private religious speech can't be discriminated against. It has to be treated equally with secular speech."

From the moment he was nominated in October, Judge Alito has made clear his fondness and admiration for Justice O'Connor. That was based in part, he said in remarks accepting the nomination, on something she had done at his first argument before the Supreme Court in 1982, an occasion that filled him with "a sense of awe."

"I also remember," he said, "the relief that I felt when Justice O'Connor, sensing, I think, that I was a rookie, made sure that the first question that I was asked was a kind one. I was grateful to her on that happy occasion, and I am particularly honored to be nominated for her seat."

O'Connor Casts a Long Shadow on the Nominee, NYT, 12.1.2006, http://www.nytimes.com/2006/01/12/politics/politicsspecial1/12legal.html

Top court upholds

California death sentence

Wed Jan 11, 2006
11:39 AM ET
Reuters

WASHINGTON (Reuters) - A divided U.S. Supreme Court on Wednesday upheld the death sentence for a California man, even though two of the four special circumstances that the jury relied upon in finding him eligible for the death penalty were later found invalid.

It marked the first decision in a death penalty case and the first 5-4 ruling by the high court under new Chief Justice John Roberts, who joined the conservative majority in upholding the death sentence for Ronald Sanders.

Sanders was found guilty of murder, burglary and attempted robbery in connection with the 1981 bludgeoning death of Janice Allen during a drug-related robbery.

The jury found four special circumstances making Sanders eligible for the death penalty: the murder was committed during a robbery; it was committed during a burglary; the victim was killed because she witnessed a crime and to prevent her testimony; and the murder was especially heinous, atrocious or cruel.

The California Supreme Court later invalidated two of the circumstances -- that it was committed during a burglary and that it was especially heinous, atrocious or cruel. It ruled the other circumstances were sufficient to uphold the death sentence.

A federal appeals court disagreed, overturned the death sentence and said Sanders was entitled to a new sentencing.

Writing for the majority, Justice Antonin Scalia ruled the jury's consideration of an invalid special circumstance in the case resulted in no constitutional violation.

He said the remaining two circumstances were enough to make Sanders eligible for the death penalty.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, the court's four most liberal members, dissented.

Top court upholds California death sentence, R, 11.1.2006,
http://today.reuters.com/news/
newsArticle.aspx?type=domesticNews&storyID=2006-01-11T163906Z_01_DIT158292_RTRUKOC_0_US-COURT-EXECUTION-CALIFORNIA.xml

Alito would give U.S. high court

Catholic majority

Wed Jan 11, 2006 12:19 PM ET
Reuters
By Michael Conlon

CHICAGO (Reuters) - Roman Catholics would be the majority on the U.S. Supreme Court for the first time if Samuel Alito is confirmed -- a historically remarkable prospect in a country where "papists" were once taught in state schools that their faith was a lie.

But so far the development has passed for little more than a curiosity, reflecting how politics trumps religion when it comes to appointments to America's highest court, experts say.

Alito and the Catholics already on the court -- John Roberts, Anthony Kennedy, Antonin Scalia and Clarence Thomas -- appear to share many conservative views held by evangelical Protestants, a group historically suspicious of Rome and its hierarchical church.

The prospect of a Catholic court majority "is a credit to the evolution of America," said Julie Fenster, co-author of "Parish Priest," a book recently published by William Morrow about the Catholic priest who founded the Knights of Columbus.

"I don't think Catholics here realize how much their antecedents had to take on the chin in terms of job discrimination, public jeering -- in some towns it was hard to walk down the street without being shouted at," she said.

"And in the (public) schools you had to accept that your children would be taught from textbooks that said Catholicism was wrong," Fenster said.

CONSTITUTION OR POPE?

Historically, many Americans questioned whether Roman Catholics could uphold the U.S. constitution, or whether they were obligated to follow the dictates of the Pope while in office. There has been only one Roman Catholic U.S. president, John F. Kennedy, elected in 1960.

But evangelical Protestants seem so far to be embracing Alito, unlike President George W. Bush's last court nominee, Harriet Miers.

"Look at how the evangelical right responded to one of its own when it came to Harriet Miers," said Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty.

Bush nominated Miers, a fellow conservative Christian, last year but she withdrew under fierce attack from conservatives who questioned her credentials and commitment to conservative ideology.

"It just shows you how it's mostly about ideology and not about religion," added Walker, whose Washington-based coalition of 14 Baptist bodies works for religious liberty causes.

"I think it's good that not a lot is being made of it. Generally religion is not a very good predictor of how one will decide cases," he added, noting that former justice William Brennan, also a Catholic, was a liberal.

Of the remaining justices, Stephen Breyer and Ruth Ginsburg are Jewish, David Souter is Episcopalian and John Paul Stevens is Protestant.

"During much of 20th Century there was a Catholic seat and a Jewish seat (on the court). Anything but one Catholic would have created a lot of consternation among Protestants and evangelicals," said Martin Flaherty, a Fordham Law School professor who once clerked for former Supreme Court Justice Byron White.

REPRESENT THE COUNTRY

Alito and the others appear to have far more things in common than differences, he said.

"On some level the court should be very roughly representative of the country. If you have not just a majority but (one) from a certain wing of a denomination you wonder if the court does represent the country," he added.

About one in four Americans say they are Roman Catholic, making the church by far the largest single U.S. denomination. There is no monolithic political philosophy marking the faith, despite the church's strong official opposition to abortion, a position widely shared by conservative evangelical Christians.

About 52 percent of Americans say they are Protestants, although mainline churches are losing members as the evangelical movement grows. Less than 2 percent of the U.S. population is Jewish.

One anomaly is that 20 percent of U.S. Catholics are Hispanic, yet none of the five who would be on the court is, noted Tom Smith, director of the General Social Survey at the National Opinion Research Center in Chicago.

Religion "has pretty much become passe" as an issue, he suggested, except to the degree that it becomes a hot potato in nearly every U.S. presidential campaign when candidates define their stand on abortion.

Opposition to Alito has come from groups worried that the court would eliminate the right to abortion. Legal Momentum, a woman's legal rights group, said it feared putting Alito on the court would be "adversarial to a woman's right to choose."

Alito would give U.S. high court Catholic majority, R, 11.1.2006,
http://today.reuters.com/news/
NewsArticle.aspx?type=fundLaunches&storyID=2006-01-11T171900Z_01_DIT160687_RTRUKOT_0_TEXT0.xml&related=true

Foreign Law

Should Not Influence U.S. Courts,

Alito Says

January 11, 2006
The New York Times
By DAVID STOUT

WASHINGTON, Jan. 11 - Judge Samuel A. Alito Jr., President Bush's nominee for the Supreme Court, said today he did not believe that American judges should be guided by the laws of other countries in coming to their decisions.

"I don't think it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution," Judge Alito said in response to questions from Senator Tom Coburn, Republican of Oklahoma, in the third day of the judge's confirmation hearings before the Senate Judiciary Committee.

"I think the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world," Judge Alito said. "The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The Framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time; they wanted them to have the rights of Americans."

The nominee was, at least implicitly, finding fault with the Supreme Court's ruling on March 1 that outlawed the execution of killers who were under 18 at the time of their crimes. That opinion, decided by a 5-4 majority, relied in part on the trend of international opinion against the death penalty, especially for youthful offenders.

But Judge Alito said he saw "a host of practical problems" if American jurists are to look overseas.

"You have to decide which countries you're going to survey," he said. "And then it's often difficult to understand exactly what you are to make of foreign court decisions. All countries don't set up their court systems the same way." Foreign courts may have greater authority, or have policy-making roles, he said.

So far, the hearings have been free of surprises, with the nominee resisting the efforts of Democrats and Senator Arlen Specter of Pennsylvania, the committee chairman, to pin him down on the issue of abortion rights. Mr. Specter, one of only a few Senate Republicans who favor abortion rights, has vowed to keep an open mind about the nomination, as have all eight Democrats on the committee.

Meanwhile, the panel's nine other Republicans have virtually promised to vote for Judge Alito, having taken every opportunity to praise his credentials and integrity and to serve him easy questions. Democrats, on the other hand, have questioned the nominee sharply, sometimes with obvious skepticism, about abortion and his commitment to personal rights in general. Should the committee approve the nomination on a straight party-line vote and send it to the Senate floor, the judge would have an excellent chance at confirmation, since Republicans have 55 of the chamber's 100 seats.

In voicing strong disapproval of relying on foreign jurisprudence, Judge Alito was more explicit than he has been on other issues, including abortion. On that issue, he insisted again today, in the face of Democratic skepticism, that he would keep an open mind and be guided by precedent in considering abortion-related cases.

Senator Richard J. Durbin, Democrat of Illinois, said a 1985 memorandum that the young Samuel Alito wrote as a lawyer in the Reagan administration, and which the nominee has declined to explicitly disavow, "does not show an open mind" about abortion rights.

In that memo, Judge Alito disagreed with the high court's 1973 decision in Roe v. Wade, which established a woman's right to choose abortion, and discussed ways that it might be overturned.

"I'm troubled by that," Mr. Durbin said.

Judge Alito said, as he has repeatedly, that the first step in considering a legal issue is case-law precedent and that, indeed, the numerous unsuccessful challenges to Roe v. Wade have reinforced it. As for his 1985 memo, he said, "That was 20 years ago, and a great deal has happened in the case law since then."

When Senator Durbin said he was still not satisfied with the judge's answers, the nominee said, "I've explained, senator, as best I can how I see it."

Senator Sam Brownback, Republican of Kansas, and Mr. Coburn approached the concept of precedence from the other direction, using their questions to express their strong opposition to abortion.

First, Mr. Brownback cited several comments from legal scholars, some of whom could be at least loosely categorized as "liberal," in which the Roe v. Wade decision was derided as judicial activism. Then Mr. Brownback got Judge Alito to say, as he has before, that while precedent deserves respect, it is not all-powerful.

Most notably, Judge Alito said under questioning from Mr. Brownback, the Supreme Court's 1896 ruling that upheld the "separate but equal" doctrine in racial segregation was wrong, even though it endured until it was swept aside by the 1954 ruling in Brown v. Board of Education that struck down public-school segregation.

"Spectacularly wrong," Judge Alito said of the 1896 ruling in Plessy v. Ferguson, which involved railroad cars and held that separate accommodations did not deprive blacks of their rights as long as those accommodations were equal.

That exchange soon led Mr. Brownback to suggest that Roe v. Wade might one day be similarly overturned - a prospect that alarms abortion-rights supporters, who fear that Judge Alito would be far less sympathetic to their cause than the retiring Justice Sandra Day O'Connor has been. Judge Alito, now on the United States Court of Appeals for the Third Circuit, has been nominated to take her place.

"Settled law?" Mr. Brownback asked rhetorically, and scornfully, referring to Roe v. Wade.

Mr. Coburn, too, said that decision should be overturned because it is "pro-abortion, pro the destruction of human life."

Foreign Law Should Not Influence U.S. Courts, Alito Says, NYT, 11.1.2006, http://www.nytimes.com/2006/01/11/politics/politicsspecial1/11cnd-confirm.html

The Overview

Alito, at Hearing,

Pledges an Open Mind on Abortion

January 11, 2006
The New York Times
By RICHARD W. STEVENSON and NEIL A. LEWIS

WASHINGTON, Jan. 10 - Judge Samuel A. Alito Jr. said Tuesday that he would bring an open mind to the Supreme Court when it came to abortion rights and sought to rebut suggestions that he had an overly expansive view of presidential powers as he parried a barrage of questions at the heart of his confirmation battle.

In his first public give and take with the 10 Republicans and 8 Democrats on the Senate Judiciary Committee, Judge Alito made no glaring mistakes as he engaged in a day of sparring with Democrats who are concerned that he would move the court to the right on some of the most divisive issues facing the nation.

Giving careful, limited answers to probing and sometimes aggressive questions about his views on abortion, Judge Alito said he would give considerable weight to decades of rulings built on the concept that a decision to terminate a pregnancy falls under a constitutional right to privacy.

"Today, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we've been discussing, and that's the issue of stare decisis," the legal term for precedent, he said.

"And if the analysis were to get beyond that point, then I would approach the question with an open mind and I would listen to the arguments that were made."

But he did not commit himself to upholding or overturning the right to an abortion, and he did not address whether he might support further incremental restrictions on abortions.

Under nine and a half hours of on-and-off questioning on the second day of his hearing before the committee, which will pass initial judgment on his fitness for the seat being vacated by Justice Sandra Day O'Connor, Judge Alito also tried to avoid locking himself into any specific position on executive authority.

He said no president could operate outside the law and the Constitution, but he repeatedly dodged efforts to solicit his views on whether President Bush had exceeded his authority in the recently disclosed eavesdropping program and in the way terrorism suspects and enemy combatants have been held.

The judge, who was frequently defended by the panel's Republicans, addressed other issues that Democrats tried to use against him. They included his membership in a Princeton alumni group known for its opposition to co-education and affirmative action admission policies, his failure as a federal appeals court judge to recuse himself in a case that touched on the interests of a mutual fund firm with which he invested his money and what Democrats characterized as a pattern of favoring the interests of the government and powerful institutions over those of individuals.

Speaking calmly, if with a continued hint of nervousness, Judge Alito provided no substantive new insights into his judicial philosophy or background as he tried to cast himself as open-minded and dedicated to the proposition that the rule of law should trump personal views and public opinion.

Democratic senators tried throughout the day to argue that the burden was on Judge Alito to earn confirmation.

"It should not be a situation that unless he says something wrong he is confirmed," Senator Charles E. Schumer, Democrat of New York, told reporters. But that, in fact, seemed to be the working assumption of both liberal and conservative groups.

By the end of the day, Judge Alito seemed to remain in a good position to win confirmation from the Republican-run Senate, despite concern among many Democrats that he has a too deeply ingrained conservative ideology, especially for the seat being vacated by Justice O'Connor. She has occupied a crucial middle ground on abortion, affirmative action, religion and other social issues, and many liberal groups fear that Judge Alito, if confirmed, would move the court distinctly rightward.

Democrats raised the specter of ideological extremism directly and obliquely. Under questioning from Senator Herb Kohl, Democrat of Wisconsin, Judge Alito explained as largely a matter of partisan loyalty his previously expressed admiration for Judge Robert H. Bork, whose Supreme Court nomination failed in 1987 because of concerns that his brand of conservatism was far out of the mainstream. He said he disagreed with Judge Bork on many issues.

Senator Jon Kyl, Republican of Arizona, also gave Judge Alito a chance to draw a clear line between himself and Judge Bork. Mr. Kyl repeated to Judge Alito a question that got Judge Bork in trouble during his hearing, asking why he wanted to serve on the court. Judge Bork, responding to Senator Alan K. Simpson, Republican of Wyoming, answered that it would be "an intellectual feast," a response that struck his critics and even some of his supporters as bloodless and detached.

Judge Alito answered the question by saying that it would be "a way in which I can make a contribution to the country and to society."

Much as Judge John G. Roberts Jr. did during his confirmation hearings last year to become chief justice, Judge Alito steered a noncommittal course on abortion. He agreed that the Constitution protected the right to privacy, and endorsed the idea that even the Supreme Court should think long and hard before overturning well-established precedents.

When asked directly whether he still agreed with the position he took as a Reagan administration lawyer in 1985, that the Constitution does not provide a basis for a woman's right to abortion, he acknowledged that that was his view at the time. But he dodged the question of how he felt now, saying that he now approached the issue as a judge and that if the issue came before him on the Supreme Court, he would look first at the weight given to precedent.

Judge Alito's comments about Roe v. Wade, the 1973 ruling that first found a constitutional right to abortion, were largely drawn out in two colloquies: a brisk but respectful exploration of the issue by Senator Arlen Specter of Pennsylvania, the committee chairman, in the morning and a more aggressive and adversarial approach from Senator Schumer nearly nine hours later.

Mr. Specter asked if Judge Alito agreed that Roe and a later case, Planned Parenthood of Southeastern Pennsylvania v. Casey, could be regarded as "super-precedents" as some legal analysts and judges have claimed. Under that theory, judges should be exceedingly reluctant to reverse such rulings because many people have come to rely on the constitutional right to abortion.

Judge Alito, evidently prepared for the question, tried to dismiss the notion of "categorizing precedents as super-precedents or super-duper precedents." He said that cases like Roe, which have been reaffirmed many times, had a greater claim to survive further review.

But Mr. Schumer, at the end of the day's session, said that Judge Alito's pledges of fealty to the concept of precedent were of little value.

He told Judge Alito that Judge Clarence Thomas made similar comments at his confirmation hearing in 1991 but had since voted to reverse a wide range of precedents. Mr. Schumer said that Judge Alito's colleagues on the federal appeals court, many of whom support him, had written opinions criticizing him as ignoring precedent in his own court, the United States Court of Appeals for the Third Circuit.

Judge Alito responded that his record as a judge on the appeals court showed that he decided each case on the merits and not with the intention of reflexively restricting abortion rights. Although Judge Alito took what abortion rights activists considered an antiabortion position on the most prominent case that has come before him on abortion rights, Casey in 1992, he came down in other cases, largely on technical grounds, in favor of upholding laws on reproductive rights.

"When someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues," he said.

With the dance over abortion having become well choreographed over the years, the questioning about the extent of executive authority offered the opportunity for fresh insights into Judge Alito's thinking, and Democrats pressed him hard on the topic.

"I believe there is a larger pattern in your writings and speeches and cases that show an excess of almost single-minded deference to the executive power without showing a balanced consideration of the individual rights of people," said Senator Edward M. Kennedy, Democrat of Massachusetts.

Judge Alito sought to set out a position that recognized limits on presidential power without specifying what those limits might be. He said he agreed with a framework for assessing such limits set out in 1952 by Justice Robert H. Jackson in a concurring opinion that rejected President Harry S. Truman's attempt to seize the nation's steel mills.

He also endorsed Justice O'Connor's statement in Hamdi v. Rumsfeld in 2004 that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

But he was vague when asked about how he would view the dispute over whether Mr. Bush had exceeded his authority or acted illegally in establishing an eavesdropping program that listened in, without a warrant, on calls between American citizens in the United States and people abroad who were suspected of having ties to terrorists.

Those issues, he said, "are obviously very difficult and important and complicated questions that are quite likely to arise in litigation perhaps before my own court or before the Supreme Court."

Democrats sought to make an ethical issue out of Judge Alito's failure to live up to a statement he made during his confirmation to the appeals court, that he would recuse himself from any case involving a number of institutions with which he had financial dealings.

They bored in on his failure to recuse himself in a case involving Vanguard, the mutual fund firm that handles his investments. Judge Alito initially heard the case, but after the plaintiff raised questions about his potential conflict of interest, he stepped aside and the case was reheard by the appeals court.

Judge Alito told the committee that he mistakenly heard the case because it slipped through the court's process of screening for conflicts. He said that although he violated no ethical rules, he wished he had not heard the case in the first place.

Senator Patrick J. Leahy, Democrat of Vermont, asked Judge Alito why he had made a point of including his membership in a group called Concerned Alumni of Princeton in his 1985 job application to the Reagan administration. The group had complained about the admission of women and what it had asserted were less well-qualified minority candidates. "Why in heaven's name were you proud of being part of CAP?" Mr. Leahy asked.

"Senator, I have racked my memory about this issue, and I really have no specific recollection of that organization," Judge Alito replied. He said that he was unaware of the criticism of the group in 1985 when he included it on his application.

    Alito, at Hearing, Pledges an Open Mind on Abortion, NYT, 11.1.2006, http://www.nytimes.com/2006/01/11/politics/politicsspecial1/11confirm.html

The Context

Judge Alito Proves

a Powerful Match for Senate Questioners

January 11, 2006
The New York Times
By ADAM LIPTAK and ADAM NAGOURNEY

WASHINGTON, Jan. 10 - If Senate Democrats had set out to portray Judge Samuel A. Alito Jr. as extreme on issues ranging from abortion to government surveillance of citizens, they ran up against an elusive target on Tuesday: Samuel A. Alito Jr. For nearly eight hours, Judge Alito was placid, monochromatic and, it seemed, mostly untouchable.

Unlike the testimony of John G. Roberts Jr., who had often declined to answer questions on various grounds, among them that certain issues might come before him as chief justice or that his older writings did not necessarily reflect his current views, Judge Alito's default impulse frequently seemed to be to try to give a direct response to the senators' often rambling questions.

Failing that, he offered what he presented as clarifications of earlier statements or writing, sanded of any rough edges, or said he simply could not recall details about some past chapter of his life that had raised concern among senators. Only in one exchange did he appear rattled, refusing to give a direct answer when Senator Charles E. Schumer of New York asked him if he still held a view, expressed in 1985, that there was no constitutional right to abortion.

For the most part, his handling of questions from Democrats had the effect of leaving his questioner shuffling through papers in search of the next question.

Judge Alito was not Judge Roberts, to be sure - far less personable, rarely smiling and struggling to draw even the occasional burst of laughter. But he came across as far less ideological than Democrats have suggested, undercutting their efforts to stir public opposition by portraying his writing as outside the American mainstream.

Yes, he said, he once believed that there was no constitutional right to abortion, but at the time he was merely a "a line attorney in the Department of Justice in the Reagan administration," and he would keep an open mind should abortion come before him at the Supreme Court.

Not even a president is above the law, he said, though he added that he did not have enough information to say if he agreed that President Bush had broken the law by authorizing extensive domestic eavesdropping without warrants.

He claimed no memory of having been active in Concerned Alumni of Princeton, which opposed the university's affirmative action program for minorities, despite listing his affiliation with the group in a 1985 job application. That lack of memory "left some of us puzzled," said Senator Joseph R. Biden Jr. of Delaware.

Even when he was pressed to offer his opinion on the landmark Supreme Court decision that awarded the 2000 presidential election to Mr. Bush, Judge Alito said he had not given the case enough attention to offer an opinion, an assertion that left his questioner, Senator Herb Kohl, Democrat of Wisconsin, rolling his eyes.

But at other times, he silenced Democrats by the directness of his responses. Asked by Senator Edward M. Kennedy of Massachusetts about an endorsement of "the supremacy of the elected branches of government" in the 1985 job application, Judge Alito simply disavowed it.

"It's an inapt phrase," he said, "and I certainly didn't mean that literally at the time, and I wouldn't say that today. The branches of government are equal."

Mr. Kennedy followed up. "So you've changed your mind?" he asked.

"No, I haven't changed my mind, senator," Judge Alito responded. "But the phrasing there is very misleading and incorrect."

To a large extent, Judge Alito's success at skating though a good deal of the day reflected the quality of the questioning. The senators frequently did not follow up on their own queries, and Mr. Biden in particular devoted most of his 30 minutes to talking, leaving little time for the nominee to speak.

Mr. Schumer, whose questioning left Judge Alito looking wobbly and pale, was an exception, as was Senator Dianne Feinstein of California, who pressed him on his views about the Supreme Court's authority to overrule precedent. Early in the day, Judge Alito said there "needs to be a special justification for overruling a prior precedent."

Ms. Feinstein asked for an example of such a justification. It took four attempts, but Judge Alito finally listed some decisions in which such justifications figured.

Like Judge Roberts, Judge Alito declined to adopt the terminology of the Judiciary Committee chairman, Senator Arlen Specter of Pennsylvania, that the status of Roe v. Wade was "super precedent" or "super duper precedent," a reference to the fact that its core holding had been reaffirmed in later cases. "It sort of reminds me of the size of laundry detergent in the supermarket," Judge Alito said, in one of the very few comments he made that gave rise to laughter.

The nominee said he did believe there was a constitutional right to privacy, based on a 1965 Supreme Court case that overturned a Connecticut law prohibiting married couples from using contraceptives, though he did not take it the next step to argue that such a provision could be extended to abortion.

At a time when members of Congress from both parties are increasingly concerned that the White House has become overly empowered, he also said the president did not have a "blank check" to do what he wanted.

When several Democrats pressed him on a statement he once made calling Judge Robert H. Bork "one of the most outstanding nominees" for the Supreme Court in this century, he said that he had been speaking only in his role as a member of the Reagan administration and that he in fact did not agree with some of Judge Bork's positions.

Judge Alito's command of the law was impressive, but it did not have Judge Roberts's effortless, Olympian quality. In responding to one of many questions about presidential power, for instance, he slightly misstated an element of the framework set out in a 1952 concurring opinion by Justice Robert H. Jackson.

"Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress?" asked Senator Patrick J. Leahy, Democrat of Vermont.

"Where the president is exercising executive power in the face of a contrary expression of Congressional will," Judge Alito said, "you'd be in what Justice Jackson called 'the twilight zone,' where the president's power is at its lowest point."

Judge Alito's larger point in describing the opinion was correct, but Justice Jackson's reference to a "zone of twilight" was not to situations where Congress had spoken but, as Justice Jackson wrote in 1952, to "when the president acts in absence of either a Congressional grant or denial of authority."

Senator Jon Kyl, Republican of Arizona, asked Judge Alito, as he had asked Judge Roberts, whether it was appropriate for American courts to look to the precedents of foreign courts. The differences in their responses were illuminating.

Judge Roberts was crisp. "Looking at foreign law for support," he said, "is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge."

Judge Alito was more methodical. "I don't think that foreign law is helpful in interpreting the Constitution," he said, adding that it might be helpful in other contexts, including the interpretation of treaties and of issues in private lawsuits.

Asked by Senator Kyl why he wanted to serve on the Supreme Court, Judge Alito gave an answer that contrasted with Judge Bork's famous response in 1987. Judge Bork, whose nomination was defeated, said the court's work would be "an intellectual feast."

Judge Alito gave a blander, almost bureaucratic answer.

"I think it's an opportunity for me to serve the country," he said, "using whatever talent I have."

    Judge Alito Proves a Powerful Match for Senate Questioners, NYT, 11.1.2006, http://www.nytimes.com/2006/01/11/politics/politicsspecial1/11alito.html

Supreme Court Nominee Faces

1st Questions From Senate Panel

January 10, 2006
By THE ASSOCIATED PRESS
Filed at 10:52 a.m. ET
The New York Times

WASHINGTON (AP) -- Supreme Court nominee Samuel Alito said Tuesday he would deal with the issue of abortion with an open mind as a justice, though he defended his 1991 judicial vote saying women seeking abortions must notify their husbands.

In the second day of Senate hearings, Alito also said no president or court is above the law -- even in time of war -- as he addressed questions on presidential powers. The federal judge also faced tough questions about his decisions during 15 years on an appeals court and about his writings on wiretaps.

President Bush's choice for the high court said his Reagan-era writings opposing abortion reflected an attorney representing a client's interests and, if confirmed and faced with an abortion case, ''I would approach the question with an open mind.''

The judge defended his dissent in the 1991 case of Casey v. Planned Parenthood, in which the 3rd U.S. Circuit Court of Appeals struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

The Supreme Court also rejected the spousal notification, but Chief Justice William Rehnquist quoted from Alito's opinion in his own dissent. The high court, on a 5-4 vote, upheld a woman's right to the procedure but was divided on other elements of the case.

Alito told the Senate Judiciary Committee: ''I did it because that's what I thought the law required.''

In a 1985 memo as an official of the Reagan administration, Alito described a legal strategy for chipping away at abortion rights. Questioned about the document, he told the committee, ''That was a statement that I made at a prior period of time when I was performing a different role and, as I said yesterday, when someone becomes a judge you really have to put aside the things you did as a lawyer at prior points in your legal career.''

Bush's pick to replace retiring Justice Sandra Day O'Connor told the Judiciary Committee that courts in general should follow their earlier decisions and avoid being moved by public opinion on controversial issues.

''The legitimacy of the court is undermined if it makes its decision based on public perception,'' Alito said.

Alito, who has been criticized by opponents for advocating broad presidential powers, said he did not believe war allowed the president to bypass the Constitution. The issue has been at the forefront amid questions about Bush's decision to secretly order the National Security Agency to conduct wiretaps of Americans in the terror war.

''No person is above the law, and that means the president and that means the Supreme Court,'' the judge said.

Committee Chairman Arlen Specter, R-Pa., started the hearing by questioning Alito about abortion and privacy rights, divisive issues that loom large as the Senate decides whether to confirm the conservative jurist.

Alito told the panel that he agrees ''with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent.''

Alito said he doesn't believe in the idea of a super precedent -- or, he added, in a moment of levity, ''super-duper'' precedents either.

O'Connor, whom Alito would replace, wrote in 2004 that ''a state of war is not a blank check for the president when it comes to the rights of the nation's citizens.'' Specter asked Alito his view on her comments, and Alito said he endorsed them.

''It's a very important principle,'' Alito said. ''Our Constitution applies in times of peace and in times of war. And it protects American citizens in all circumstances.''

Alito didn't answer directly when Specter asked about whether the November 2001 act of Congress authorizing use of force against terrorists responsible for the Sept. 11 terrorist attacks gave the president the authority to order warrantless wiretaps, as the administration contends.

''These questions are obviously very difficult and important ... and likely to arise in litigation even before my own court or before the Supreme Court,'' he said.

Like Chief Justice John Roberts at his confirmation hearings in September, Alito repeatedly explained his writings as a lawyer in Republican Justice Departments as examples of an attorney representing a client.

Supreme Court Nominee Faces 1st Questions From Senate Panel,
NYT, 10.1.2006,
http://www.nytimes.com/aponline/national/AP-Alito.html


 

Judge Samuel A. Alito Jr. on Monday,

the first day of his Supreme Court confirmation hearings in Washington.

Judge Alito spoke of his background,

his influences and the need for independent-minded jurists.

Stephen Crowley/The New York Times        January 10, 2006

  Alito Says Judges Shouldn't Bring Agenda to Cases

NYT        10.1.2006

http://www.nytimes.com/2006/01/10/politics/politicsspecial1/10confirm.html


 

The Overview

Alito Says

Judges Shouldn't Bring Agenda to Cases

January 10, 2006
The New York Times
By RICHARD W. STEVENSON and NEIL A. LEWIS

WASHINGTON, Jan. 9 - Addressing concerns among Democrats that his past support for conservative positions makes him too much of an ideologue for a seat on the Supreme Court, Judge Samuel A. Alito Jr. began his public drive for confirmation on Monday by saying judges should have no agendas or preferred outcomes of their own.

"The judge's only obligation - and it's a solemn obligation - is to the rule of law," Judge Alito said. "And what that means is that in every single case, the judge has to do what the law requires." [Transcript, Page A18.]

But with the two parties primed for a debate about the composition of the court and the nation's direction on several divisive issues, Judge Alito steered clear in his opening statement of any discussion about his views on abortion, presidential power and other specific topics, setting up what promised to be a far more direct clash with Democrats on Tuesday over his suitability for the pivotal seat. [News analysis, Page A17.]

On his first day before the Senate Judiciary Committee, Judge Alito spoke in generalities that nonetheless seemed intended to get across a message that he was culturally conservative but judicially open minded.

He sketched his background and traced his outlook in part to two influences: what he described as the unpretentious community in New Jersey where he grew up, and, by contrast, his student days at Princeton and Yale in the late 1960's and early 1970's, when he said he saw privileged students behaving irresponsibly.

He chose not to extend that social observation to whatever views he holds today on the issues that are likely to dominate the hearings in coming days and instead set out only a generalized description of a belief in the need for independent-minded jurists.

"The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand," Judge Alito said in remarks that lasted about 11 minutes. "But a judge can't think that way. A judge can't have any agenda. A judge can't have any preferred outcome in any particular case. And a judge certainly doesn't have a client."

Judge Alito has a long paper trail documenting largely conservative positions he has taken on the bench and before that as a government lawyer, making it harder for him to skate around questions about his specific views on hot-button issues. On Monday, he obliquely addressed concerns among his critics that he had a predetermined intention to drive the court rightward.

Good judges, he said, "are always open to the possibility of changing their minds based on the next brief that they read or the next argument that's made by an attorney who's appearing before them or a comment that is made by a colleague during the conference on the case when the judges privately discuss the case."

The day's proceedings began the formal process of weighing Judge Alito's nomination to the Supreme Court seat vacated by Justice Sandra Day O'Connor, who is retiring. Given Justice O'Connor's role as a swing vote on many of the most heatedly debated social issues, including abortion, the death penalty, affirmative action and religion, the stakes this time are perhaps even higher than during the battle last year over the nomination of Judge John G. Roberts Jr., who was confirmed as chief justice on Sept. 29 with half the Senate's Democrats supporting him.

The panel's Republican chairman, Senator Arlen Specter of Pennsylvania, called the hearing a "subtle minuet" in which the nominee was likely to answer questions only to the degree necessary to win confirmation. But its first stage Monday, opening statements from each of the committee's 18 members, was closer to a political slam dance in which the parties foreshadowed what seems sure to be several days of aggressive questioning about the nominee's views.

"There is, I think, a heavy sense of drama as these hearings begin," Mr. Specter said.

The White House is confident it has the votes to win confirmation, though officials have long said they expect Judge Alito to get through by a slimmer margin than the 78-to-22 vote for Chief Justice Roberts. But the administration remains concerned enough that Democrats might seek to hold up the nomination by procedural means that President Bush, after having breakfast with Judge Alito at the White House on Monday morning, told reporters that he wanted the Senate to "give this man a fair hearing and an up or down vote on the Senate floor."

In their statements, many of the committee's eight Democrats demanded that Judge Alito explain more fully his views on abortion and presidential power, the two issues likely to dominate the questioning beginning Tuesday morning.

Setting out the liberal case against Judge Alito, Senator Edward M. Kennedy, Democrat of Massachusetts, said he had grave concerns about what he characterized as Judge Alito's support for an "all-powerful executive branch," a record of supporting powerful institutions over individuals, hostility to the concept of "one person, one vote" and opposition to abortion rights. Mr. Kennedy also raised questions about Judge Alito's credibility.

Another Democrat, Senator Charles E. Schumer of New York, said: "Judge Alito, in case after case, you give the impression of applying careful legal reasoning, but too many times you happen to reach the most conservative result. Judge Alito, you give the impression of being a meticulous legal navigator, but in the end, you always seem to chart a rightward course."

After the hearing, Mr. Schumer dismissed Judge Alito's opening statement as an "empty platitude."

Democrats repeatedly sought to establish that the standard for Judge Alito should be the judicial record and philosophy of Justice O'Connor. In doing so, they portrayed Justice O'Connor as a moderate, independent judicial thinker and raised questions about whether Judge Alito would be sufficiently independent of ideological influence and loyalty to the Republican politicians who have been his patrons, including Mr. Bush.

Republicans portrayed him as exceedingly well qualified and well within the mainstream of conservative thought.

"I want to remind the American people that this nominee, Judge Alito, has been confirmed unanimously by the United States Senate not once but twice," said Senator Charles E. Grassley, Republican of Iowa, referring to Judge Alito's nomination to the United States Court of Appeals for the Third Circuit 15 years ago and his earlier confirmation as a federal prosecutor.

Judge Alito sat mostly impassively through the statements. When his turn came to speak, he appeared composed if a bit nervous and less polished than Chief Justice Roberts was during his hearing.

But the biggest difference from the Roberts hearings may have been in the political climate. Since then, Mr. Bush has been weakened by the failed nomination of Harriet E. Miers to the Supreme Court, the continued bloodshed in Iraq and the corruption inquiries that have ensnared Republican lobbyists and members of Congress.

Abortion, as always, was the topic at the top of both parties' substantive concerns. But the disclosure last month that the federal government had used a secret program to eavesdrop on American citizens inside the United States has introduced a charged issue into the proceedings: the limits on a president's powers. Judge Alito has voiced his support for an expansive view of presidential powers, and Democrats signaled that they intended to question him as aggressively on that topic.

It is not clear how much, if anything, they will extract from him in the way of specific answers.

Senator Orrin G. Hatch, the Utah Republican who was Mr. Specter's predecessor as chairman, quickly raised the issue of what kinds of questions were fair or even permissible.

"We must remember that judicial nominees are constrained in what they may discuss and how they may discuss it," Mr. Hatch said, evidently seeking to inoculate Judge Alito from criticism that could follow his refusal to discuss some issues by asserting they could come before him on the Supreme Court.

Mr. Schumer offered an opposing view, telling Judge Alito, "Most of the familiar arguments for ducking direct questions no longer apply and certainly don't apply in your case."

Mr. Schumer said the validity of the position that he could not speak on any issue likely to come before him "vanishes when the nominee has a written record, as you do, on so many subjects."

While senators from both parties routinely declared that they would withhold decisions on how to vote until after the hearings' completion, the committee's Republicans offered mostly strong praise for Judge Alito, while the Democrats expressed varying degrees of wariness and suspicion.

Some Republican senators broke away from the party's position that Judge Alito should be evaluated mainly on his qualifications and not the results of his decisions.

Senator John Cornyn, Republican of Texas, praised Judge Alito for his rulings as a federal appeals court judge allowing some religious displays in public settings. He said the Supreme Court had been misinterpreting the Constitution by limiting the ability of "people of faith" to freely express their beliefs in the public square.

Abortion, a theme throughout the day, was first raised pointedly by Senator Dianne Feinstein, Democrat of California, the committee's only woman. Ms. Feinstein said she was "concerned with the impact you could have on women's rights, and specifically a woman's right to choose."

On the other end of the spectrum, Senator Tom Coburn, an Oklahoma Republican who is a practicing physician, was blunt in his opposition to the very concept of legalized abortion.

"I've had the unfortunate privilege of caring for over 300 women who've had complications from this wonderful right to choose to kill their unborn babies," Mr. Coburn said. "And that's what it is: it's the right of convenience to take the life."

    Alito Says Judges Shouldn't Bring Agenda to Cases, NYT, 10.1.2006, http://www.nytimes.com/2006/01/10/politics/politicsspecial1/10confirm.html

Christian conservatives

rally for Judge Alito

Mon Jan 9, 2006 6:32 AM ET
Reuters

WASHINGTON (Reuters) - Christian conservative leader Rev. Jerry Falwell said on Sunday that confirming Federal Appeals Court judge Samuel Alito to the U.S. Supreme Court would be the biggest victory for his constituency in three decades.

"What we've worked on for 30 years, to mobilize people of faith and value in this country, what we've done through these years is coming to culmination right now," Falwell said at a rally on the eve of Alito's confirmation hearing.

"Now we're looking at what we really started on 30 years ago, reconstruction of a court system gone awry," Falwell said at a rally at a Baptist church in Philadelphia and broadcast on Christian radio and television.

"There could be a reconstruction of the U.S. Supreme Court in our immediate lifetime," said Falwell.

Falwell and others, including Pennsylvania Republican Sen. Rick Santorum, urged supporters to press senators to confirm Alito, who is set to begin hearings before the Senate Judiciary Committee on Monday.

"Go to the telephone, write your letter, get to your U.S. senators. Let's confirm this man, Judge Alito, to the U.S. Supreme Court," Falwell said. "And let's make one more step toward bringing America back to one nation under God."

President George W. Bush has nominated Alito, a member of the 3rd Circuit since 1990, to replace retiring Justice Sandra Day O'Connor, who often has been the swing vote on the nine-member Supreme Court on social issues.

Largely liberal opponents say that Alito's record as a judge and a Reagan administration lawyer two decades ago show him to be a threat to civil rights, abortion rights, environmental protection.

Santorum described Alito as a judge who was "unwilling to impose his views on the American people."

"In other words, the kind of jurist our founders hoped for to preserve the principals of our great country," Santorum said.

James Dobson of Focus on the Family told the audience that Alito's confirmation would mean the end of a Supreme Court that has imposed its will on the American people in deciding cases involving religion.

Rev. Barry Lynn, executive director of Americans United for Separation of Church and State said in a telephone interview that the rally on Sunday was more about power than justice.

"They want a judiciary system that lock, stock and barrel follows the religious doctrines of the Falwells and Dobsons of the world," Lynn said.

    Christian conservatives rally for Judge Alito, R, 9.1.2006,
http://today.reuters.com/news/
NewsArticle.aspx?type=fundLaunches&storyID=2006-01-09T113127Z_01_HO914457_RTRUKOT_0_TEXT0.xml&related=true

The Reagan Legacy

Two Legal Careers

That Diverged May Intertwine Again

January 9, 2006
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Jan. 8 - Not long after the inauguration of President Ronald Reagan in 1981, two young lawyers moved into cramped offices along the same hallway on the fifth floor of the Justice Department's headquarters.

One, Samuel A. Alito Jr., 30, was hired as a nonpolitical career lawyer. Promoted from the office of a New Jersey prosecutor, he quietly drafted Supreme Court briefs in the solicitor general's office. Former colleagues describe him as shy and serious, prone to spending long hours buried in case files. Charles Fried, the Reagan administration solicitor general, remembers Mr. Alito as "a very cultured man" who was more likely to spend their lunches together talking about books and ballet than politics.

The other, John G. Roberts Jr., 25, arrived fresh from a clerkship for Justice William H. Rehnquist of the Supreme Court, and entered the department a rung higher than Mr. Alito, as a presidential appointee assisting the attorney general on a variety of matters. Mr. Roberts was handsome and funny, former colleagues say, and hard not to like.

A quarter-century later, their contrasting styles will be on display again this week in the Senate hearings on the Supreme Court nomination of Judge Alito, now on the Court of Appeals for the Third Circuit. But if Chief Justice Roberts had the more political job then, it is now Judge Alito who faces more political opposition, in part because of statements he made in 1985 to persuade the administration's leaders that he, too, was a conservative at heart.

To many of their former colleagues, the ascent of both men to the Supreme Court within months of each other would be the high point of a conservative revolution in the legal establishment: an effort over several decades to seed the federal courts with jurists holding a narrower interpretation of the Constitution's application to abortion rights, civil rights, the rights of criminal defendants and the scope of federal power.

"It is the culmination," said Edwin Meese III, who was attorney general in the Reagan administration and a leading architect of the movement. "Judge Alito and Chief Justice Roberts represent the best among the group of excellent young lawyers that came into government at the same time in the Reagan administration."

They worked together only occasionally at first, colleagues said. Mr. Roberts's job entailed tracking prominent or politically sensitive cases for the attorney general, which sometimes meant checking with Mr. Alito on his work, their colleagues said. But they came together much more often in 1985, when Mr. Alito was elevated to a political job in the Office of Legal Counsel. Mr. Roberts was an associate White House counsel. The Office of Legal Counsel acted as a kind of in-house law firm evaluating pending legislation and interpreting statutes for the White House counsel, so Mr. Roberts was in effect one of Mr. Alito's clients.

"We might walk into each other's offices and say, 'Did you get John Roberts's call about such and such?' " recalled Douglas W. Kmiec, a law professor at Pepperdine University who worked in an office adjoining Mr. Alito's and knew both men.

Former colleagues say their shared intellectual framework could make for an unusually close collaboration on the court. "The way that with a good friend you don't start each sentence anew, you start it in midsentence, that would be the relationship between John and Sam," said Professor Kmiec (pronounced kih-MECK).

Some Democratic lawyers argue, however, that the similarity of the men's backgrounds may be a liability, too. "Some senators might well conclude that the fact that one nominee is so similar to the immediate previous nominee is an argument against confirmation," said Walter E. Dellinger III, who was acting solicitor general in the Clinton administration. "Some might say, send us someone a little different."

But friends and colleagues of Chief Justice Roberts and Judge Alito say the two jurists' careers before and after the Reagan administration have followed very different paths, reflecting their personalities. Although both graduated from law school with sterling credentials - Mr. Alito was an editor of the law review at Yale and Mr. Roberts at Harvard - the chief justice followed an appeals court clerkship with his clerkship for Justice Rehnquist.

Mr. Alito moved back to New Jersey after law school to clerk for Judge Leonard I. Garth of the Court of Appeals for the Third Circuit, who had also worked closely with his father, a researcher for the New Jersey Legislature, and he stayed in the state to become a federal prosecutor.

In the Reagan White House, Mr. Roberts's conservative bona fides as a former Rehnquist clerk were already well-established. But Mr. Alito's were not.

"Sam was not like me, and most of the other political appointees, who were known-quantity Reagan conservatives," said Charles J. Cooper, the administration lawyer who in 1985 recruited Mr. Alito to a political job in the Office of Legal Counsel.

Mr. Cooper said he had begun to see that Mr. Alito was "simpatico" with the administration's goals from some of his work, including a recently disclosed memorandum proposing legal tactics to curb or end abortion rights. But for his promotion, "His political views, his thoughts concerning the administration's legal direction, had to be made known to the president's personnel office," Mr. Cooper said.

Thus as part of his application, Judge Alito was obliged to write a short essay spelling out his convictions about the conservative movement's legal approach to the Constitution, abortion rights, affirmative action and other matters. Democrats contend that, unlike any of the briefs or memorandums Chief Justice Roberts wrote for Republican administrations or clients, Judge Alito's essay provides a window into his personal view of the Constitution, and they now plan to make it the centerpiece of their questions for him in the hearings.

After the two left the administration, their careers diverged sharply. In 1986, Mr. Roberts left the administration to work in Washington as a private lawyer among the elite ranks of the Supreme Court bar. Mr. Alito, in contrast, surprised some of his colleagues by leaving the capital.

"Sam's main interest when he left was to raise his kids in his home state and the area where he grew up," Mr. Cooper said. "He wanted to go back to New Jersey first." It was only later that Mr. Alito settled on a position as United States attorney, Mr. Cooper said.

"John's progression was one that people would expect from the script - he is in the Beltway, he stays in the Beltway, and he takes his skills to a very profitable firm," Professor Kmiec said, but Judge Alito's return to New Jersey was not. "I would look at him with a bit of an arched eyebrow and I'd say, 'I don't get it.' "

His former colleagues said Judge Alito passed up an opportunity to make much more money by spending his whole career as a federal employee. And his 15-year tenure on the bench has left his opponents with far more judicial opinions to attack. Some liberal legal scholars contend that Judge Alito's record reveals a much more committed, less flexible conservative than do any of the opinions Chief Justice Roberts wrote during his two years as an appeals court judge. "In Roberts's opinions there were no signs of partisanship," said Cass R. Sunstein, a law professor at the University of Chicago who publicly supported Chief Justice Roberts's confirmation. "That gave liberals a lot of comfort."

Studying Judge Alito's opinions led him to a different conclusion, Professor Sunstein said: "Judge Alito's opinions have a different flavor. He is very predictably critical of individual rights claims, and predictably to the right of the court's majority."

Still, Mr. Fried, the former solicitor general, said he had no doubt that Chief Justice Roberts also shared the same conservative views that Judge Alito laid out in 1985 memorandum.

"John is more cagey," he said, adding, "but intellectually and dispositionally there is not a dime's worth of difference between them."

    Two Legal Careers That Diverged May Intertwine Again, NYT, 9.1.2006, http://www.nytimes.com/2006/01/09/politics/politicsspecial1/09judges.html

Justices to Say

When Police Can Enter Private Home

January 7, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Jan. 6 - The Supreme Court agreed on Friday to try to define, more precisely than in the past, the emergencies that can justify a warrantless police entry into a private home.

The case is an appeal filed by the State of Utah from a Utah Supreme Court decision early last year that four Brigham City police officers violated the Fourth Amendment's prohibition against unreasonable search and seizure by entering a home to break up a fight.

The police, who went to the home in response to a neighbor's complaint about a loud party, did not have a warrant and did not announce their presence before walking through an open back door. They arrested three occupants for disorderly conduct, intoxication and contributing to the delinquency of a minor by allowing a teenager to drink.

The Utah trial court, appeals court and Supreme Court all ruled that the evidence of alcohol consumption could not be introduced at trial because of the illegal police entry.

Supreme Court precedents have established numerous exceptions to the Fourth Amendment's warrant requirement. Two are at issue in this case, Brigham City v. Stuart, No. 05-502. One is an exception for "exigent circumstances," in which split-second judgments must be made by the police to prevent, for example, the destruction of evidence. The other is an "emergency aid" exception, in which the police are permitted to act immediately to prevent injury or to assist an injured person.

The Utah courts held that the circumstances of this case did not justify invoking either of the exceptions. The garden-variety altercation, visible to the police through a window, did not amount to an "exigent circumstance," the Utah Supreme Court said. It also said the police could not claim the "emergency aid" exception because they did not enter the home for the purpose of providing medical assistance.

In the state's appeal, Utah's attorney general, Mark L. Shurtleff, is arguing that the "subjective motivations of police officers" are irrelevant as long as the entry was "objectively reasonable." State courts are divided on how to apply either of the exceptions, the state's brief said.

The justices granted six new cases for argument in April and decision before the current term ends in early summer. There was no word on the most closely watched case from among the several hundred available for the justices' action at their Friday morning conference: the Bush administration's appeal from a decision by the federal appeals court in St. Louis that declared unconstitutional the federal ban on so-called partial birth abortions.

Accepting a Justice Department appeal, the court agreed to decide whether a conviction should automatically be overturned if a defendant has been denied representation by the lawyer of his choice.

In this case, a defendant facing trial in federal district court in St. Louis on charges of conspiring to distribute marijuana wanted a lawyer from California, who had a good track record of representing federal drug defendants, to represent him.

But the lawyer, Joseph Low, was not admitted to practice before the district court, necessitating the judge's permission for him to proceed with the case. The judge denied permission, and the defendant, Cuauhtemoc Gonzalez-Lopez, was represented by a less experienced local lawyer. He was convicted and sentenced to 24 years in prison.

On appeal, the United States Court of Appeals for the Eighth Circuit said the defendant had been deprived of his "fundamental" constitutional right to a lawyer of his choice, a denial that it said "infects the entire trial process" and required automatic reversal of his conviction.

The government's appeal, United States v. Gonzalez-Lopez, No. 05-352, argues that "rules of automatic reversal are highly disfavored and should be reserved for only the most egregious constitutional errors." To win a new trial, the government maintains, a defendant who has been deprived of the lawyer of his choice should be required to show that the "counsel of choice might well have made a difference to the outcome."

The court also agreed to decide whether parents who successfully sue a public school system's special-education plan for their disabled child are entitled to be reimbursed for the money they spent on expert witnesses. The lower federal courts are in dispute on this question.

The Individuals with Disabilities Education Act, the federal law that entitles children with disabilities to a "free appropriate public education," authorizes courts to order school systems to reimburse parents for their legal fees incurred in bringing a successful challenge to a proposed education plan, but does not mention expert witness fees.

In this case, Arlington Central School District v. Murphy, No. 05-18, the federal appeals court in New York found that expert fees were implicitly covered.

    Justices to Say When Police Can Enter Private Home, NYT, 7.1.2006, http://www.nytimes.com/2006/01/07/politics/politicsspecial1/07scotus.html

7 Federal Appeals Judges

to Testify to Alito's Character

January 7, 2006
The New York Times
By SHERYL GAY STOLBERG

WASHINGTON, Jan. 6 - In an unusual move, Senate Republicans have called seven federal judges, all of them colleagues of Judge Samuel A. Alito Jr. on the United States Court of Appeals for the Third Circuit, to testify as character witnesses for him next week at his Supreme Court confirmation hearings.

It is rare for sitting federal judges to testify on behalf of judicial nominees, not to mention a Supreme Court nominee. Rarer still is the appearance of an entire panel of judges.

The judges' testimony could shed light on one area of controversy, Judge Alito's failure to recuse himself from cases involving Vanguard, a mutual fund company that manages his investments, as he had earlier pledged to do. One judge, Judge Edward R. Becker, said he intended to raise the Vanguard issue.

"My wife is sitting six feet from me; she owns a bunch of Vanguard shares," Judge Becker said. "It's on my financial disclosure. I have never recused from Vanguard."

Judge Becker is a close friend of Senator Arlen Specter, Republican of Pennsylvania and chairman of the Senate Judiciary Committee, who will preside over the Alito hearings. Mr. Specter said he asked Judge Becker if he would be comfortable testifying for Judge Alito.

"He said he didn't know," Mr. Specter said, in a transcript of an interview released by his office, recounting the conversation. "Judges don't testify as character witnesses. That is really in criminal trials, unless they are subpoenaed."

Judge Becker then raised the issue with his colleagues on the Third Circuit, both men said.

"It then became perfectly obvious, to hear the testimony of people who really know this guy," the transcript quoted Mr. Specter as saying. "I mean, this isn't some casual acquaintance."

Of the seven judges, two are retired; three carry the title of senior judge, meaning they hear cases part time; and two are active. All but one were nominated by Republican presidents.

The two active judges are the chief judge of the court, Anthony J. Scirica, who has worked with Judge Alito for 15 years, and Maryanne Trump Barry, who has been a colleague of Judge Alito for six years and is the sister of Donald Trump, the real estate developer and television host.

While such a situation is highly unusual, other sitting federal judges have testified on behalf of lower court nominees, Mr. Specter said. And at least one former Supreme Court justice has made an appearance at another's confirmation hearing. Warren E. Burger, who served as chief justice from 1969 to 1986, testified in 1987 in favor of the Supreme Court nomination of Robert H. Bork.

The ranking Democrat on the Judiciary Committee, Senator Patrick J. Leahy of Vermont, said he did not object to the judges' testifying. Drawing a comparison to Chief Justice John G. Roberts Jr. at his confirmation hearings, Mr. Leahy said, "Judge Roberts felt he could stand on his own."

Also on Friday, Democrats canceled one of their witnesses, Stephen R. Dujack, a journalist who has criticized a conservative Princeton alumni group to which Judge Alito once belonged. The cancellation came after members of the staff of Senator John Cornyn, Republican of Texas, distributed a Dujack column that compared eating meat to the Holocaust.

    7 Federal Appeals Judges to Testify to Alito's Character, NYT, 7.1.2006, http://www.nytimes.com/2006/01/07/politics/politicsspecial1/07confirm.html

At Hearings,

Democrats Plan to Call

Critics of Alito's Integrity

January 6, 2006
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Jan. 5 - Signaling their intent to put up a tough fight in next week's hearings on the Supreme Court nomination of Judge Samuel A. Alito Jr., Senate Democrats said Thursday that they would call at least two witnesses who could question his personal credibility as well several experts on civil rights and constitutional law.

One witness is John G. S. Flym, a legal scholar. In 2002, Mr. Flym served as counsel to a plaintiff suing the mutual fund company Vanguard in a case that came before Judge Alito on the United States Court of Appeals for the Third Circuit.

Judge Alito had pledged at his confirmation hearings for the appeals court in 1990 that he would recuse himself from cases involving Vanguard, which managed his investments, and when a panel including him ruled unanimously in the company's favor, Mr. Flym complained to the court.

Judge Alito has attributed the lapse to an error in a courthouse computer system that screened for potential conflicts. Ethics guidelines did not require him to recuse himself, and he volunteered to do so at his confirmation hearings to avoid even the appearance of a conflict of interest.

The other witness expected to address Judge Alito's character is Stephen R. Dujack, a journalist who has criticized a conservative alumni group to which Judge Alito belonged. The group, Concerned Alumni of Princeton, opposed the university's admission of women, criticized its affirmative action policies and urged the admission of more alumni children. It went out of business around 1987.

Judge Alito wrote in a 1985 application for a promotion in the Reagan administration that he belonged to the group. Records of the group give no indication that he played an active role in it, and in a response to a Senate judicial questionnaire for the Supreme Court nomination Judge Alito said he did not recall being a member until he was reminded by the disclosure of his 1985 application.

Senator John Cornyn, Republican of Texas and a member of the Judiciary Committee, said the witnesses were a sign that Democrats were grasping for objections. "It just shows how desperate they are to come up with something to criticize him for," he said.

Mr. Cornyn noted that Judge Alito had stepped aside for a rehearing of the Vanguard case, calling it "clearly a case of no harm no foul."

In a meeting with reporters Thursday, Senator Edward M. Kennedy, Democrat of Massachusetts and a member of the Judiciary Committee, called Concerned Alumni of Princeton "anti-black" and "anti-women," and questioned why Judge Alito had failed to mention his membership in response to the Senate questionnaire for his confirmation to the federal appeals court.

Laying the groundwork for other lines of Democratic attack, Mr. Kennedy argued that Judge Alito's opinions in cases that divided his court showed a pattern of rulings in favor of government power and against individual plaintiffs. "Is there any limit on executive authority this nominee will recognize?" he asked.

In a separate presentation, Senator Charles E. Schumer, Democrat of New York and another member of the Judiciary Committee, echoed similar themes, focusing on arguments Judge Alito had made for a "unitary" approach to executive power.

Judge Alito has argued that all executive branch authority ultimately resides in the hands of the president, and he has objected in particular to a statute that created a special prosecutor outside the authority of the executive branch. But he has not spelled out how far he believes such authority extends.

Mr. Schumer said Judge Alito's approach had ominous implications.

"The president would seem to have inherent authority to wiretap American citizens without a warrant, to ignore Congressional acts at will or to take any other action he saw fit under his inherent powers," he said, adding that Judge Alito should be prepared to explain his views more fully before the committee.

Other witnesses expected to be called by Democrats include the constitutional law professors Laurence H. Tribe of Harvard and Erwin Chemerinsky of Duke University; Representative Charlie Gonzalez, Democrat of Texas and chairman of the Hispanic Caucus Civil Rights Task Force; Fred Gray, a veteran civil rights lawyer; and Kate Michelman, a former president of Naral Pro-Choice America.

At Hearings, Democrats Plan to Call Critics of Alito's Integrity, NYT, 6.1.2006, http://www.nytimes.com/2006/01/06/politics/politicsspecial1/06alito.html

Justices Let U.S. Transfer Padilla to Civilian Custody

January 5, 2006
The New York Times
By LINDA GREENHOUSE

WASHINGTON, Jan. 4 - The Supreme Court late Wednesday granted the Bush administration's request to transfer the terrorism suspect Jose Padilla from military to civilian custody, ending an odd two-week standoff over where he should be held while the justices decide whether to hear his case.

The court's order means that Mr. Padilla will be held in a federal prison in Miami rather than a Navy brig in Charleston, S.C., while he waits to learn whether the justices will take up his appeal of a decision that upheld, in sweeping terms, the government's authority to keep citizens it designates enemy combatants in open-ended military confinement.

While the immediate practical effect was minimal, and the court did not suggest how it might ultimately act in Mr. Padilla's case, the action was something of a victory for the administration after an embarrassing rebuff by a usually friendly federal appeals court that had refused to permit Mr. Padilla's transfer.

The Supreme Court's unsigned one-page order reviewed the recent convoluted history of the case and concluded by noting only that the court would consider Mr. Padilla's pending petition "in due course."

That petition, seeking review of a federal appeals court decision that upheld the government's authority to keep Mr. Padilla in open-ended military detention as an enemy combatant, is scheduled to go before the justices at their closed-door conference on Jan. 13.

The administration is arguing that his appeal has been rendered moot by the government's decision to try him on terrorism charges in the Federal District Court in Miami, where he was indicted by a grand jury on Nov. 17.

Mr. Padilla's lawyers are arguing, to the contrary, that the indictment has not made his appeal moot because the administration has not withdrawn his designation as an enemy combatant and has not foreclosed the prospect of sending him back to military detention if he is acquitted in a civilian trial.

The United States Court of Appeals for the Fourth Circuit, which includes South Carolina and which had earlier issued the decision upholding Mr. Padilla's military detention, refused to authorize the transfer from the brig, where he has been held for more than three years. It issued an opinion on Dec. 21 that suggested in stinging terms that the administration was now manipulating the federal court system, with "intentional mooting," in order to avoid Supreme Court review of the case.

In his opinion for the appeals court, Judge J. Michael Luttig said that while there might be valid reasons for the administration's request for an "eleventh-hour transfer" of Mr. Padilla, "any legitimate reasons are not evident, and the government has not offered explanation." He continued: "On an issue of such surpassing importance, we believe that the rule of law is best served by maintaining on appeal the status quo in all respects and allowing Supreme Court consideration of the case in the ordinary course."

Judge Luttig, the author of the Fourth Circuit decision that Mr. Padilla has appealed to the Supreme Court, has generally been supportive of the administration's claims of broad executive authority and was on the short list for the court's recent vacancies. His opinion this time set off a flurry of new Supreme Court filings, led by the administration, which a week ago asked the justices to "recognize the release and transfer of Jose Padilla" from the Charleston brig to the federal prison in Miami.

Solicitor General Paul D. Clement told the court that the Fourth Circuit's order refusing the transfer "is based on a mischaracterization of events and an unwarranted attack on the exercise of executive discretion, and, if given effect, would raise profound separation-of-powers concerns."

In response, Mr. Padilla's lawyers told the court on Friday that while their client was "certainly eager to be released from the military brig where he has been held virtually incommunicado and in solitary confinement for the past three and a half years," the justices should wait the two weeks that it would take to consider his underlying appeal "in an orderly fashion."

The lawyers said "it would be highly imprudent for this court to hold that the government has an unlimited ability to transfer prisoners in military custody while their habeas petitions are pending." Mr. Padilla's Supreme Court appeal, Padilla v. Hanft, No. 05-533, began as a petition for a writ of habeas corpus, a challenge to the constitutionality of his confinement.

On Tuesday, the administration filed another brief with the court, reiterating the request for a transfer while conceding that Mr. Padilla's case would still be eligible for Supreme Court review even if he were no longer in military custody. "Granting the application will not prejudice this court's consideration of Padilla's petition," the brief said, adding, "It would, however, eliminate the anomaly of a citizen being held by the military against the wishes of both the executive and the detainee (at least in all but the short run)."

With the Supreme Court still technically on its Christmas recess, its action late Wednesday afternoon came as something of a surprise. "The government's application presented to the chief justice and by him referred to the court is granted," the order said.

Mr. Padilla, an American convert to Islam, was arrested in May 2002 at O'Hare International Airport in Chicago and transferred to military custody the next month. Initially, the administration described him as a trained operative of Al Qaeda on a mission to detonate a radioactive "dirty bomb" and blow up apartment buildings. His indictment in November mentioned neither of those accusations, instead charging him with "material support" to terrorists.

In his Dec. 21 opinion, Judge Luttig was critical of the government's failure to explain "the difference in the facts asserted to justify Padilla's military detention and those for which Padilla was indicted." The government "surely must understand," he said, that its actions had left "the impression that Padilla may have been held for these years, even if justifiably, by mistake - an impression we would have thought the government could ill afford to leave extant."

    Justices Let U.S. Transfer Padilla to Civilian Custody, NYT, 5.1.2006, http://www.nytimes.com/2006/01/05/politics/politicsspecial1/05padilla.html

Liberal Groups

to Release Ads Attacking Court Pick

January 5, 2006
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Jan. 4 - The battle over the Supreme Court nomination of Judge Samuel A. Alito Jr. turned personal Wednesday with the announcement of new commercials that sharply escalated liberal attacks on him, moving beyond his legal views to attack his character and credibility instead.

The commercials come less than a week before confirmation hearings begin Monday. Steve Schmidt, a White House spokesman handling the nomination, called the commercials "dishonest" and "a desperation tactic."

Separately, the American Bar Association on Wednesday rated Judge Alito "well qualified" for the court, its highest rating, as expected. His supporters hailed the rating. Liberal groups said their complaint was his judicial philosophy, not his professional qualifications.

A commercial by one of the liberal groups, MoveOn.org Political Action, depicts Judge Alito as an actor receiving makeup and coaching.

"Yes, you wrote on a job application that a woman has no constitutional right to an abortion," a handler tells him. "But your excuse is brilliant: you only did it to get the job."

"You broke your promise not to rule on cases involving that company you invested with. Stick to your answer: computer glitch," the handler continues. "Oh, and the group you belonged to that wanted to restrict African-American admissions to your college. You've been saying, 'I don't recall.' Love it."

The "job application" mentioned in the commercial refers to a 1985 memorandum Judge Alito wrote as a lawyer for the Reagan administration seeking a promotion. Judge Alito did express disagreement with the constitutional right to abortion, but the closest thing to the "excuse" described in the commercial is a statement attributed to Judge Alito by Senator Dianne Feinstein, Democrat of California, after they met.

"He said, 'I was an advocate seeking a job,' " Mrs. Feinstein recounted. " 'It was a political job. That was 1985. I am now a judge.' " She said he added: " 'It is very different. I am not an advocate. I don't give heed to my personal views. What I do is interpret the law.' "

In the same memorandum, Judge Alito said he was a member of Concerned Alumni of Princeton, a defunct conservative organization that the commercial asserts "wanted to restrict African-Americans admissions to your college."

The group never explicitly sought to limit admissions of black students, but it did oppose the school's affirmative action admissions policies and urged the admission of more children of alumni.

There is no other record of evidence of Judge Alito's involvement besides the 1985 memorandum. In answering a Senate judicial questionnaire, Judge Alito wrote that he had "no recollection of being a member."

MoveOn said it would pay $150,000 to run an advertisement nationally on CNN and locally in some states beginning Monday.

The reference to a broken promise about recusing himself echoes a commercial from a coalition of liberal groups led by People for the American Way, the Alliance for Justice and the Leadership Conference on Civil Rights.

The coalition said it would run its commercial this week on national cable news programs and locally in Maine and Arkansas, which have senators, Republican and Democratic, who hold potentially pivotal votes. Officials would not disclose how much they were spending.

"News reports reveal he broke his own commitment three times, even ruling in favor of a company he invested with," an announcer says. "Then gave three different excuses why." Legal ethics experts, however, have said Judge Alito's lapses were minor. In his 1990 appeals court confirmation, Judge Alito pledged to recuse himself from cases involving two companies, Vanguard and Smith Barney, that managed his mutual fund investments. Ethics guidelines did not require him to step aside because a mutual fund investor has no stake in the fund manager, but Judge Alito pledged to do so to avoid even the appearance of conflict. And in all but a very small number of cases, he kept that commitment.

Judge Alito has offered multiple but not contradictory explanations for his lapses. He has said that they occurred because a courthouse computer failed to screen for one of the cases, that the case had not violated ethics rules and that his initial pledge covered only his first years on the bench.

To support Judge Alito, Progress for America Voter Fund, a group with close ties to the White House, is spending $500,000 to run a commercial on national cable news programs and in some states. "Every day, desperate liberals make up a steady drip of attacks against Judge Samuel Alito," an announcer says.

    Liberal Groups to Release Ads Attacking Court Pick, NYT, 5.1.2006, http://www.nytimes.com/2006/01/05/politics/politicsspecial1/05alito.html

U.S. Bar Association Grants Alito High Rating

January 4, 2006
By THE ASSOCIATED PRESS
Filed at 12:59 p.m. ET
The New York Times

WASHINGTON (AP) -- Supreme Court nominee Samuel Alito received an unanimous well-qualified rating from the American Bar Association on Wednesday, giving his nomination momentum as the Senate prepares for confirmation hearings next week.

The rating came after a vote of the ABA federal judiciary committee and was delivered in a letter to the Senate Judiciary Committee, which will launch Alito's confirmation hearings on Monday. Alito will face almost an hour of questioning from each of the 18 senators on the committee.

''As a result of our investigation, the committee is of the unanimous opinion that Judge Samuel A. Alito, Jr. is well-qualified for appointment as associate justice of the United States Supreme Court,'' said Stephen L. Tober, chairman of the ABA panel.

The ABA rating -- the highest -- is the same that Alito received back in 1990, when President Bush's father, George H.W. Bush, nominated him to the 3rd U.S. Circuit Court of Appeals.

There was one recusal from the voting committee, Tober said. He did not explain why the person did not vote. The group will testify during Alito's confirmation hearing about how it arrived at the rating.

For more than 50 years, the ABA has evaluated the credentials of nominees for the federal bench, though the nation's largest lawyers' group has no official standing in the process. Supreme Court nominees get the most scrutiny.

Chief Justice John Roberts also got a well-qualified rating from the ABA last year before his nomination hearing, and was confirmed by the Senate on a 78-22 vote. Supreme Court nominee Harriet Miers withdrew her nomination before the ABA released its rating of her candidacy.

Miers was sent a copy of Alito's rating, since she still serves as the White House counsel.

The ABA ratings are well-qualified, qualified and not qualified. The committee's members interview hundreds of colleagues -- confidentially -- and scours pages of a nominee's writings before coming up with the rating.

''Judge Alito is right on track to become Justice Alito, and today's announcement of the ABA rating demonstrates what an overwhelming majority of Americans already believe, that Judge Sam Alito is unquestionably well-qualified to serve on our nations highest court,'' said Senate Majority Leader Bill Frist, R-Tenn.

The ABA's highest rating won't stop some from attacking Alito, said Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee.

''Unfortunately, the hard left groups decided long before these ratings were announced that they would oppose his nomination,'' Cornyn said Wednesday. ''And some Senate Democrats, including some who have previously described the ABA's evaluation as the gold standard, will now dismiss the rating as meaningless.''

The ABA's relationship with the Bush administration and conservatives has been rocky. In 2001, Bush ended the ABA's preferential role in vetting prospective judicial nominees and decided the administration would not give the group advance word on names under consideration.

Conservatives had been bitter ever since the ABA's mixed review of the qualifications of failed Supreme Court nominee Robert Bork in the Reagan administration.

------

On the Net:

ABA rating of Alito and other Supreme Court nominees: http://www.abanet.org/scfedjud/SCpage.html 

    U.S. Bar Association Grants Alito High Rating, NYT, 4.1.2006, http://www.nytimes.com/aponline/politics/AP-Alito.html

Advocacy Groups Prepare

New Ad Campaigns on Alito

January 3, 2006
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Jan. 2 - In the final days before hearings on the Supreme Court nomination of Judge Samuel A. Alito Jr., partisans on both sides are pulling out all the stops in an effort to sway public opinion.

Moving beyond Judge Alito's judicial record, a coalition of liberal groups is preparing commercials attacking his integrity and credibility instead, several people involved in the effort said Monday. They spoke only after being granted anonymity because the plans are supposed to be confidential until their formal announcement on Wednesday.

Conservatives, for their part, are capitalizing on ethnic pride to rally Italian-American support for Judge Alito with public events and newspaper advertisements. The efforts are aimed particularly at the Northeastern States, where some moderate Republican senators have expressed doubts about his confirmation.

And in Arkansas, home to two moderate Democratic senators whose votes are considered to be in play, another group, the Judicial Confirmation Network, is running Christmas-themed commercials beginning this week on African-American gospel radio stations. In them, the Rev. Bill Owens, a black pastor, urges support for Judge Alito to protect public displays of Nativity scenes and menorahs, and to uphold the right of schoolgirls to "draw pictures of our Savior, Jesus Christ, for class projects."

The advertising campaigns on both sides are the most visible components of a last-minute push by advocacy groups anticipating a potentially close Senate vote. With the hearings set to begin next Monday, both sides are seeking to open new fronts in their lobbying battle. The liberals are adding new issues to commercials about Judge Alito's judicial record that began months ago, while the conservatives are reaching out to groups usually found in the Democratic ranks.

People involved in the liberal coalition, which includes People for the American Way, the legal group Alliance for Justice, the A.F.L.-C.I.O., the N.A.A.C.P., the Sierra Club and abortion rights groups, said it planned to run new commercials, beginning this week with radio and television advertisements in selected states intended to undercut Judge Alito's credibility.

These people said the first advertisements would focus on occasional lapses from a pledge Judge Alito made at the 1990 hearings for his confirmation to the appeals court that he would recuse himself from cases involving the companies that managed his mutual fund investments, Vanguard and Smith Barney.

Legal ethics experts say judges are not obliged to recuse themselves in such cases. There are very few known lapses during Judge Alito's 15 years on the United States Court of Appeals for the Third Circuit. Judge Alito has said the lapses were inadvertent and occurred long after the initial period covered by his pledge. But the liberal groups plan to highlight differences in his explanations about the cases over time.

Steve Schmidt, a White House spokesman handling the nomination, called the accusations "outrageous."

"Judge Alito has gone through his entire life with a sterling reputation for integrity," Mr. Schmidt said, declaring that the liberal coalition had "decided to throw mud against the wall and see if it sticks."

Leaders of the liberal coalition declined to comment on the advertisements. But they confirmed that they were seeking to raise new concerns about Judge Alito's credibility.

Ralph Neas, president of People for the American Way, said the group's goal was to persuade the public that Judge Alito and his supporters had tried to obscure his lifelong commitment to a "right-wing" legal philosophy.

And at a time when Congress will be debating renewal of the antiterrorism law known as the USA Patriot Act and the Bush administration's domestic eavesdropping program, officials of the liberal groups said they hoped to call attention to Judge Alito's record of writings and opinions supporting law enforcement and presidential power.

"I think people's greatest fear is that Judge Alito would side with big government," said Nan Aron, president of the Alliance for Justice. "He would side with allowing government to intrude on individual personal lives."

Mr. Schmidt of the White House said such claims distorted Judge Alito's record on the bench. "They might as well throw in that he was abducted by aliens when he was 15 years old," he said. "It just has no basis in reality."

On Tuesday, Progress for America, a group close to the Bush administration, is expected to announce its own new advertising campaign. And other conservatives have choreographed events intended to defend Judge Alito and undermine his attackers as the hearings begin.

Firing back against the formation of Law Students Against Alito at his predominantly liberal alma mater, Yale Law School, about 150 of its students and alumni signed a letter urging senators to support his confirmation. It is scheduled to run as an advertisement Wednesday in the Congressional publication The Hill, and versions of the letter will be sent to senators as well, said Keith Appell, a conservative publicist organizing efforts to support the nomination.

On Thursday, Concerned Women for America, a conservative Christian group, will hold a news conference to call attention to women supporting Judge Alito. A group of black conservatives and pastors calling for confirmation will hold a conference call for reporters the same day.

Italian-Americans for Judge Alito was organized mainly by Peter Secchia, a Republican donor and former ambassador to Italy under the first President Bush. The group works closely with the current White House, and paid for two advertisements in The New York Times in November urging support for Judge Alito's confirmation. In the next week, the group plans to hold public events with prominent Italian-Americans in Washington; Providence, R.I.; Jersey City; New York; and Wilmington, Del.

In a letter dated Dec. 19, Joseph R. Cerrell, a Democratic donor and vice chairman of the National Italian American Foundation, made the group's case personally to Senator Hillary Rodham Clinton, a New York Democrat whose campaign he supported.

"While I realize that your philosophical concerns may not allow you to officially support this nomination," Mr. Cerrell wrote, "I can tell you that many within the Italian American community from both parties will be upset if this nominee does not have an opportunity to be considered by the full Senate."

    Advocacy Groups Prepare New Ad Campaigns on Alito, NYT, 3.1.2006, http://www.nytimes.com/2006/01/03/politics/politicsspecial1/03alito.html

Alito Supporters Portray Nominee as Less Polished

January 2, 2006
The New York Times
By DAVID D. KIRKPATRICK

WASHINGTON, Jan. 1 - As Judge Samuel A. Alito Jr. enters his final week of dress rehearsals for his Supreme Court confirmation hearings, participants say his performance has already made one thing clear: he will never be as polished and camera-ready as Chief Justice John G. Roberts Jr. was at his own hearings a few months ago.

"He is not going to be the well-manicured nominee," said one participant in the rehearsals, known as murder boards, at which Republican lawyers have played the roles of interrogating senators. "That is not to say it is going to be worse. It is just going to be different."

How Judge Alito will come off before the panel of senators and television cameras is an unknown in the politics of his confirmation. Senators of both parties have said it will not be easy to follow Chief Justice Roberts, about whom Senator Richard J. Durbin, Democrat of Illinois, said "they retired the trophy" for an outstanding performance by a judicial nominee.

And some Democrats said they already had much more pointed questions waiting for Judge Alito, focusing mainly on strongly worded statements that he made as lawyer in the Reagan administration about his conservative approach to the Constitution, abortion rights and other issues. Leading Democratic senators have said his responses will be a deciding factor in whether they seek to block the nomination by filibustering.

But two of Judge Alito's supporters who participated in the murder boards, speaking about the confidential sessions on condition of anonymity for fear of White House reprisals, said they emerged convinced that his demeanor was a political asset because it gave him an Everyman appeal.

"He will have a couple hairs out of place," one participant said. "I am not sure his glasses fit his facial features. He might not wear the right color tie. He won't be tanned. He will look like he is from New Jersey, because he is. That is a very useful look, because it is a natural look. He's able to go toe-to-toe with senators, and at the same time he could be your son's Little League coach."

What is more, this participant said, Judge Alito displayed a "street smart" New Jerseyan's willingness to talk back to his questioners. Unlike Chief Justice Roberts, Judge Alito often turned inquiries back on the lawyers who were quizzing him, politely asking them to spell out exactly what they meant, two participants said.

Judge Alito "had no bones about coming back for clarification," the same person said, adding that the judge sometimes stumped the legal experts acting in the roles of senators and suggesting that he could pose an even greater challenge to actual senators reading from staff talking points. Still, both participants emphasized that during the practice sessions, Judge Alito never became heated or combative.

Some Democrats, however, say Judge Alito's less-polished style may also be a vulnerability. Two Democratic aides briefed on his meeting with Senator Charles E. Schumer, Democrat of New York, said that when the senator pressed him about an opinion he had written involving the regulation of machine guns, Judge Alito grew defensive - something else Chief Justice Roberts never did. The aides, speaking anonymously because the meeting was private, said the episode led them to hope he might lose his cool in front of the committee, as well.

Steve Schmidt, a spokesman handling the nomination for the White House, said the aides' account of the exchange "has no basis in reality."

Mr. Schumer declined to comment on the exchange. But he said Judge Alito's performance at the hearings would be "exceptionally important," in part because his long record as a lawyer in the Reagan administration and then as a judge in Newark on the United States Court of Appeals for the Third Circuit meant he had a lot to explain. And Democrats will be especially vigilant, Mr. Schumer said, because Judge Alito would succeed retiring Justice Sandra Day O'Connor, the court's swing vote on abortion and other social issues.

"I think the hearings will determine what at least the Democrats and even some moderate Republicans do in terms of how they vote and whether we should try to block his nomination, meaning filibuster," Mr. Schumer said, referring to the procedural tactic that would allow a group of at least 41 senators to block confirmation by refusing to end debate.

Judge Alito's long conservative record, including strong statements critical of abortion rights, make it possible that a few abortion-rights supporters among the 55-member Republican majority in the Senate might break with their party over confirmation, and the Democrats have pointedly refused to rule out a filibuster.

But at a time when Democrats are seeking to keep the spotlight on the war in Iraq and other issues, party strategists say their members will be reluctant to wage a protracted filibuster over the nomination if Judge Alito appears competent and likable in the hearings, especially if the main issue about his nomination comes down to the divisive subject of abortion.

As for the possibility that Judge Alito might turn questions back on the senators asking them, Mr. Schumer said, "That may be the advice someone gave Robert Bork," whose 1987 nomination was rejected by the Senate.

Mr. Schumer and other Democratic strategists said the party's tactics for the hearings center on a 1985 job application that Judge Alito wrote in seeking a promotion in the Reagan administration. In it, he described longstanding personal convictions about the meaning of the Constitution that included disagreements with landmark decisions about abortion rights, voting districts and criminal procedure.

Democrats argue that the job application provides an unusual glimpse into Judge Alito's judicial philosophy because he is speaking about his own understanding of the Constitution rather than describing his personal values or writing as a legal advocate for a client. They say they will seek to show that Judge Alito's later rulings as an appeals court judge follow the principles laid out in the job application, contending that he could come to the bench with a conservative agenda.

And in the aftermath of disclosures that the Bush administration tapped certain domestic phone lines without seeking warrants, Democrats say they will seek to press Judge Alito about statements and rulings that suggest broad support for police searches and executive power.

People working with Judge Alito, however, say his performance in the murder boards has left them convinced that he can easily manage such subjects. They say Judge Alito can cite other opinions he wrote to show he has also supported the rights of criminal defendants.

Faced with questions about his memorandums and judicial opinions, participants said, Judge Alito walked through their reasoning without disavowing them. But he also maintained that he was in a very different role at the time and made clear that as a judge he would approach each issue anew with an open mind.

In that sense, participants said, Judge Alito followed the pattern of Justice Ruth Bader Ginsburg, a former lawyer for the American Civil Liberties Union, rather than Chief Justice Roberts, whose record included few writings about his legal views on contentious issues.

At her confirmation hearings, Justice Ginsburg described the reasoning behind arguments she had made for abortion rights but maintained that they did not predict how she would rule from the bench.

Participants said that in his own way Judge Alito had demonstrated a level of mastery over the Supreme Court's jurisprudence similar to that of Chief Justice Roberts's.

In two weeks of murder boards organized last month by Rachel Brand of the Office of Legal Policy at the Justice Department, Judge Alito spoke confidently without notes, just as Chief Justice Roberts did before the committee. Like the chief justice, Judge Alito displayed an encyclopedic mastery of Supreme Court rulings. And again like the chief justice, he spoke at length without drinking from the pitcher of water or sampling the cookies on the table before him, participants said.

Mr. Schmidt, of the White House, said, "We are very pleased with the process as it is moving forward, and Judge Alito looks forward to the start of the hearings."

Sheryl Gay Stolberg contributed reporting for this article.

    Alito Supporters Portray Nominee as Less Polished, NYT, 2.1.2006, http://www.nytimes.com/2006/01/02/politics/politicsspecial1/02alito.html