Why Bush Picked Alito

When Judge Samuel A. Alito Jr. accepted his nomination to the Supreme Court with President Bush standing over his shoulder like a proud father, Alito dropped an unsubtle hint that he will be tough to mess with. “I argued my first case before the Supreme Court in 1982, and I still vividly recall that day,” said Alito, who was put on the 3rd Circuit Court of Appeals, in Philadelphia, by Bush’s father. Underscore “first”; this is a lawyer who’s been in the end zone before.

With his nomination of Harriet Miers, who had little experience with constitutional law, Bush went with advice that he pick someone from outside the “judicial monastery.” This time, the President went with one of the high priests. As assistant to the solicitor general under President Ronald Reagan, Alito argued 12 cases before the Supremes, and has presented at least two dozen before federal courts of appeal. And while a limited paper trail was one of the Democrats’ few quibbles with the record of Judge John Roberts as he was being considered for chief justice, Alito has a four-lane highway of writings: opinions on the Commerce Clause; the First Amendment (free speech, establishment clause and free exercise clause); the Fourth, Eighth and Eleventh amendments; and the Fourteenth Amendment (procedural due process and substantive due process). Oh, and then there are his writings on administrative law, criminal law, immigration, the False Claims Act, the Freedom of Information Act, and securities and prison litigation.

The nomination will be seen as a sop to conservatives, but they are thrilled to take it. A memo being circulated among conservatives asserts that Alito “has more federal judicial experience than 105 of the 109 Supreme Court Justices appointed in U.S. history.” Progress for America, a self-described independent group that works closely with the White House, planned to have an ad for him on the air within seven hours. At the other end of the spectrum, the liberal People for the American Way said his judicial philosophy “is far to the right.” Sen. Charles Schumer, Democrat of New York, had a straight face as he called Alito “controversial,” and said he has real questions about the judge’s record on civil rights, women’s rights and workers’ rights. “It’s sad that [Bush] felt he had to pick a nominee likely to divide America,” Schumer said. “The President seems to want to hunker down in his bunker.” Alito is an ardent conservative who will be hard to caricature, but will provide plenty of fodder for an ideological showdown. As a sign of the potential battle ahead, Senate Judiciary Committee Chairman Arlen Specter said he wants to ask Alito about abortion. The new justice could become the tie-breaking vote on abortion restrictions.

The announcement was four weeks to the minute after the President offered Miers. She was presented in the Oval Office but, as if that location were jinxed, Alito, like Roberts, was introduced in the Cross Hall, near the Bill Clinton portrait, with Chief of Staff Andrew Card and Counselor Dan Bartlett on hand. Senate Majority Leader Bill Frist, Republican of Tennessee, who had mostly held his tongue about how annoyed he was about the Miers choice, finally had something to smile about. “If the Democrats look for a fight, we’ll be there ready to fight,” he said on Fox News. Democrats are already unfolding their arguments: hostile to immigrants (based on a dispute over bilingual jurors), against civil rights and liberties and hostile to reproductive rights.

Alito’s friends hate the nickname “Scalito,” which they contend was conferred by the media, and is generally used as an unflattering or dismissive reference to positions Alito holds in common with his fellow conservative Catholic Italian-American, Justice Antonin Scalia. Alito is perhaps a non-threatening version of Scalia—he’s certainly in the justice’s camp, but not as combative. Adam Ciongoli, a corporate lawyer who was counsel to Attorney General John Ashcroft, was a clerk to Alito and said he is humble and approachable. “He always reminded the clerks, particularly new ones, that they had to remember that judges had a limited role,” Ciangoli said.

Alito, 55, a white male, does nothing for Bush’s onetime goal of diversity in the seat of Justice Sandra Day O’Connor. He was born in the Trenton area, and attends Our Lady of the Blessed Sacrament in Roseland, N.J. His hobby is baseball: He’s a Phillies fan, and coached youth league baseball from 1994 to 2000. He also was mock trial coach at a local high school from 2001 to 2003. He heads for confirmation a strong favorite, but with Republicans recognizing he will have to survive a bruising partisan fight to get there, and that some in their party could vote against him. But after the two parties had a unanimously tepid reaction to Miers, conservatives are pumped to have someone to fight for.