Rumors, rumors. This is the "horse" at the moment.
The Mild-Mannered Scalia
Law.com
Shannon P. Duffy
The Legal Intelligencer
03-03-2003
There's a nickname for federal appeals Judge Samuel Alito Jr. that captures two things at once -- his particular brand of legal conservatism and a recognition that his credentials are strong enough to put him on any Republican president's short-list for the U.S. Supreme Court.
Some lawyers call the judge "Scalito."
Roughly translated, the nickname means "Little Scalia," suggesting that Alito, a judge on the 3rd U.S. Circuit Court of Appeals, has modeled himself after Supreme Court Justice Antonin Scalia.
With Alito in President George W. Bush's sights as a possible high court nominee, the question is whether he can both overcome the nickname and somehow live up to it.
In some ways, the Scalito moniker hits the mark. In his 13 years on the 3rd Circuit, Alito has earned his stripes as a strong and intelligent voice on the growing conservative wing of a court once considered among the country's most liberal.
As with Scalia, lawyers say that Alito's vote is easy to predict in highly charged cases.
But where the nickname misses is temperament, or what some might call personality. Personality-wise, on the bench and in person, Alito is no Scalia.
Though he's a frequent dissenter and not at all afraid to disagree with his colleagues, Alito's opinions are usually devoid of passion. And his tone during oral arguments is probing but always polite.
For that reason, the 52-year-old Alito might be exactly what Bush is looking for to fill the first or, more likely, a second vacancy on the Supreme Court if the opportunity arises. Alito declined to comment for this article.
Alito's résumé reads like a recipe for high court consideration -- beginning with undergrad studies at Princeton, perhaps the Ivy League's most welcoming home for conservatives seeking elite educations, and a law degree from Yale, the Bush family's sentimental favorite.
After a clerkship with a 3rd Circuit judge, Alito worked as a front-line federal prosecutor in New Jersey for four years.
But soon after President Ronald Reagan was elected, Alito joined the Office of the Solicitor General, staying for four years and helping to decide what position the administration would take in cases up for review by the Supreme Court.
That was followed by a three-year stint at Main Justice as a deputy assistant attorney general.
In 1987, at the age of 37, Alito was appointed U.S. Attorney for the District of New Jersey, a post he held until he was tapped in 1990 by the first President Bush to join the 3rd Circuit.
On the hot-button issues, Alito has been consistently conservative.
In ACLU v. Schundler, Alito wrote the majority opinion holding that a city's holiday display that included a créche and a menorah did not violate the establishment clause of the First Amendment because it also included secular symbols such as Frosty the Snowman and a banner promoting racial diversity.
On abortion, Alito was the lone dissenter in the Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that required women seeking abortions to inform their husbands.
Alito argued that the Pennsylvania law's restrictions should have been upheld.
"The Pennsylvania Legislature could have rationally believed," Alito wrote, "that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion."
The case went on to the Supreme Court, resulting in a 6-3 decision that reaffirmed Roe v. Wade and struck down the spousal notification provision of the law. Chief Justice William Rehnquist, in his dissent, quoted Alito's underlying dissent and said he agreed with his reasoning.
In fact, over the years, Alito has been a frequent dissenter. And, unlike in Casey, he has sometimes been vindicated, when the Supreme Court reversed his colleagues and made his view the law.
In Homar v. Gilbert, Alito dissented from a ruling that a state university had violated a campus police officer's due process rights by suspending him without pay immediately after he was arrested on drug charges. The Supreme Court later agreed with Alito's view that no hearing was required because the criminal charges showed that the suspension was not baseless.
Perhaps Alito's most memorable dissent came in 1996 in Sheridan v. Dupont, a sex discrimination suit that forced the 3rd Circuit to tackle fundamental questions about the plaintiff's burden of proof.
The issue in Sheridan was whether a plaintiff in a sex discrimination case can survive summary judgment simply by casting doubt on the employer's proffer of legitimate, nondiscriminatory reasons for the adverse employment decision.
More specifically, the question was how the 3rd Circuit should interpret the 1993 Supreme Court decision in St. Mary's Honor Center v. Hicks, which held that once an employer offers legitimate reasons for its conduct, the presumption of discrimination is "rebutted" and "drops from the case."
After Hicks, the federal circuits split, with a few creating what came to be known as the "pretext-plus" standard, meaning plaintiffs must do more than merely cast doubt on an employer's explanation to have the case go forward.
In Sheridan, a 12-judge en banc panel rejected the pretext-plus theory, saying it was "within the province of the jury" to decide when discrimination had occurred.
Alito, the lone dissenter, argued that his colleagues were going too far by allowing plaintiffs to get their case to a jury whenever they managed to cast any doubt on the employer's version.
"If the majority had merely said that ... a defense motion for summary judgment or judgment as a matter of law must generally be denied, I would agree," Alito wrote.
But, he said, his colleagues had established a "blanket rule" against summary judgment that was legally "unsound."
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