Sent to me by Richard Winger, Ballot Access News, November 1, 2005

Alito Seen As Inclined to Back Government

By DONNA CASSATA Associated Press Writer

WASHINGTON (AP) — Don’t look for a bumper sticker saying "Question Authority" on Samuel Alito’s car.

President Bush’s choice for the Supreme Court typically sided with the government during his 15 years as an appellate judge, whether the issue was civil rights or workers’ rights, according to legal academics and lawyers who watch the U.S. Court of Appeals for the 3rd Circuit.

Alito has received a government paycheck for most of his professional career, as a judge, a lawyer in the Solicitor General’s and then the Attorney General’s offices in the Reagan administration, chief federal prosecutor in New Jersey and a law clerk.

If he faced a defendant, it was either from the bench or the prosecution table. He spent one summer working for the New Jersey Public Defender during law school, and his time in private practice was limited to six months with a Trenton, N.J., firm shortly after he graduated from Yale Law School in 1975.

His extensive government experience has shaped his opinions since President George H.W. Bush appointed him to the Philadelphia-based 3rd Circuit in 1990. It also has invited comparisons to another Supreme Court justice — the late Chief Justice William Rehnquist.

"Across the board, he has a pro-government inclination," said Craig Green, a professor at Temple Law School. "It’s not quite uncommon for people who made their careers in government to be more favorable."

"No way am I saying he’s a government hack," Green, who also worked in the Justice Department and with the Solicitor General’s office, was quick to add, "but it’s the strongest theme of his work."

Consider some of Alito’s dissents on cases were workers or inmates have turned to the courts:

-In Sheridan v. DuPont, Alito was the lone vote in a 12-1 decision on a case of sex discrimination. The plaintiff in the 1996 case had claimed discrimination after a demotion and sexual harassment. Alito wrote that a plaintiff in such a case should not be able to avoid having a judge summarily dismiss the case just by casting doubt on an employer’s version of the story. The full 3rd Circuit ruled that the case should be reconsidered for a new trial.

-In Bray v. Marriott Hotels, Alito sought to throw out the hiring-discrimination case of a black hotel housekeeper who was denied a promotion and saw the job go to a white woman. A three-judge panel of the 3rd Circuit ruled in 1997 that she could take her case before a jury, overturning a lower court decision that she had not made a strong enough case for that.

-In Rompilla v. Horn, Alito upheld a 17-year-old death penalty of Ronald Rompilla, who alleged that his public defenders failed to review records showing mitigating evidence of mental retardation and traumatic upbringing, even after prosecutors gave warning they planned to use the documents against him. The Supreme Court decided 5-4 to order a new penalty trial, warning state courts that shoddy defense work won’t be tolerated.

Justice Sandra Day O’Connor cast the deciding vote.

The 3rd Circuit, which encompasses Delaware, Pennsylvania, New Jersey and the Virgin Islands, hasn’t handled as many death penalty cases as some of the other appellate courts such as the Richmond-based 4th Circuit or the New Orleans-based 5th Circuit.

But on several cases of habeas corpus — constitutional challenges brought by inmates who argue that their convictions or sentences violated their basic rights — Alito tended to side with either the federal or state government.

-In the 2001 case of Riley v. Taylor, Alito dissented in the case of a black death row inmate who argued that the prosecution improperly challenged black jurors. The defendant had used statistical evidence, and Alito wrote, "suppose we ask our ‘amateur with a pocket calculator’ whether the American people take right- or left-handedness into account in choosing their presidents."

The opinion drew the wrath of his colleagues.

The racial composition of juries has been major issue for the 3rd Circuit amid questions about whether prosecutors in Philadelphia in the 1980s were encouraged to exclude blacks from juries on the theory that they were more likely to acquit.

Since then, the 3rd Circuit tossed out a number of convictions from that period and ordered new trials. Alito, in the case of Brinson v. Vaughn in February, ordered a new trial for a man imprisoned for murder since 1986.

Steven Chanenson, a professor at Villanova Law School and a former Supreme Court clerk, said, "The 3rd Circuit on criminal issues is not as defendant friendly as the 9th Circuit and not as defendant unfriendly as the 5th and the 4th."

Larry Lustberg, a Newark, N.J., attorney who has argued several cases before the 3rd Circuit, including two prisoner rights cases and a number of criminal appeals, described Alito as "remarkably brilliant, very nice and undoubtedly conservative."

Lustberg noted that Alito has interpreted the Antiterrorism and Effective Death Penalty Act of 1996, which, among other things, limited appeals in capital cases, to ensure that a state’s authority withstands even federal intervention.

Alito has worked on a court with some well-known names — Judge Marjorie Rendell is the wife of Pennsylvania Gov. Ed Rendell; Judge Maryanne Trump Barry is the older sister of developer-television personality Donald Trump.

The court’s docket is varied — including commercial litigation, immigration and criminal cases among other issues — and Alito has developed a reputation as a "tough guy to litigate in front of," according to Temple’s Green.