Fair play

The confirmation of a Supreme Court justice is for many people a distant exercise in democracy, a flash-popping political minuet staged at Beltway podiums and power lunches, in paneled offices and hearing rooms-philosophically but not personally important.

Not for David Warren Saxe.

To the Pennsylvania State University education professor, the high-court confirmation of 3rd Circuit appeals court Judge Samuel Alito is very personal. That's because Mr. Saxe is the Saxe-as in Saxe v. State College, one among thousands of Alito cases now being sifted for partisan gunpowder.

In 1999, the State College (Pennsylvania) Area School District (SCASD) adopted an "anti-harassment" policy that made punishable any "unwelcome" comments, behaviors, or writings about a sweeping array of personal traits, including race, religion, values, sexual orientation, even clothing and "hobbies." In short, saying, doing, or writing about anything that might offend just about anyone was subject to penalty. Mr. Saxe, whose children attended school in the district, is a Catholic whose religion teaches against the mainstreaming of homosexuality and other unbiblical behaviors. He felt the district's policy axed the First Amendment right to free religious and political speech.

Mr. Saxe petitioned the school board to amend or eliminate the policy, and wrote letters to local editors to make his case. The school board, he said, "ignored me, as if I was a nuisance."

Finally, he sued. And lost. A U.S. District Court ruled that the SCASD policy mirrored federal law. Meanwhile, school officials and his Penn State colleagues excoriated him in the press, accusing him of wasting taxpayer dollars on a frivolous ideological crusade. Mr. Saxe said the experience left him feeling marginalized, and reminded him of others who had fought for civil rights "from outside the mainstream of society. Suddenly I found myself in that position."

In May 2000, Mr. Saxe appealed to the 3rd Circuit Court of Appeals, where Mr. Alito had sat on the bench since 1990. Eight months later, the court unanimously ruled the SCASD policy unconstitutional. In prohibiting values-based speech, Mr. Alito wrote, the policy "strikes at the heart of moral and political discourse-the lifeblood of constitutional self-government . . . and the core concern of the First Amendment."

"When I left Mr. Alito's courtroom, I didn't know whether I'd won or lost, but I felt I had had my day in court," Mr. Saxe told WORLD. Mr. Alito's nomination "is a marvelous choice for the average guy because he'll hear what you're saying and make a decision according to the law. That's the kind of person we should all want."

The question is, will that be the kind of judge members of the U.S. Senate want? While those who know Mr. Alito and his record proclaim him a fair and meticulous jurist, Senate liberals began launching anti-Alito salvos within minutes of his Oct. 31 nomination.

"It is sad that the president felt he had to pick a nominee likely to divide America instead of choosing a nominee in the mold of Sandra Day O'Connor, who would unify us," said Senate Judiciary Committee member Charles Schumer (D-N.Y.).

Senate Minority Leader Harry Reid (D-Nev.) said Americans would soon learn whether Mr. Alito was "too radical" to replace Justice O'Connor.

The whole idea that Mr. Bush should replace Justice O'Connor with a Justice O'Connor clone is ridiculous on its face, said Chapman University law professor John Eastman. "The whole point of the past two elections was to affect the outcome of the judiciary. It's not like this was a little 'hidden' platform. Democrats lost in 2002 and 2004 on this issue. Of course this nomination is supposed to move the court to the right."

If conservative support is any indication, an Alito confirmation seems certain to do so. Unlike the fractious debate that split the right over Harriet Miers, the Bush base seems united behind the new nominee. Southern Baptist Convention president Richard Land, who supported Ms. Miers, said he is "pleased" with the new nominee and predicted Mr. Alito will survive the confirmation battle.

"We're going to win it," Mr. Land said. "I think the president, in nominating Harriet Miers, was trying to spare the country . . . a bitter, corrosive, and negative debate in the current atmosphere. . . . Since conservatives wouldn't accept that, they've got their fight."

Mat Staver, for one, is ready to rumble. The president of Liberty Counsel, a Christian public-interest law firm in Orlando, he was the first to call for Mr. Bush to withdraw Ms. Miers's nomination, based on her lack of a proven record in constitutional law.

Mr. Alito's record, by contrast, is decades long and Mr. Staver supports him as a nominee "in the mold of Thomas and Scalia. He understands that the Supreme Court has a limited role."

While Mssrs. Land and Staver disagreed on Ms. Miers, they both say the split among evangelicals over her nomination got the president's attention.

"It's fair to say that [Mr. Bush] listened to his critics," Mr. Land said.

The president "learned that he can't take evangelicals for granted. . . . We're not a monolith," Mr. Staver said. "Some evangelicals came out in opposition to the president at the worst moment of his political career, but because of his response [in nominating Mr. Alito], this moment could turn out to be the best moment of his political career."

Mr. Staver may be right. Sam Alito, 55, is regarded as one of the most distinguished jurists in America, said Todd Gaziano, director of legal studies at the Heritage Foundation. "He is every bit a scholarly constitutionalist judge who calls it as it really is . . . and doesn't pour his personal bias into his judicial opinions."

Meanwhile, the judge's personal style has earned him a reputation as a gentle and engaging man, as comfortable crafting a vanguard legal opinion as coaching Little League. (Today, his son, Phillip, is in college and his daughter, Laura, is in high school.)

"He's a regular guy," said Becket Fund founder Kevin Seamus Hasson, who writes about several key Alito rulings in his new book, The Right to Be Wrong.

When Mr. Alito served as deputy assistant attorney general in the Reagan justice department, Mr. Hasson worked under him as an attorney-adviser. "He's the same guy on the bench as he is in the office with his sleeves rolled up and his tie undone. . . . He treats the doorman the same way as he treats other judges. He puts on no airs whatsoever."

Born in 1950 in Trenton, N.J., Mr. Alito grew up in Hamilton Township, a Trenton suburb. He was named for his father, Samuel Alito, Sr., who immigrated to America as a boy and rose to become director of the nonpartisan New Jersey Office of Legislative Services. His mother, Rose, now 90, was principal of a local elementary school.

As a boy, Mr. Alito dreamed of becoming a professional baseball player, but instead chose a more practical route-law. Valedictorian of his high-school class, he earned a bachelor's degree at Princeton in 1972, and his law degree in 1975 at Yale, where at least one professor predicted that he would someday become a judge. From 1977 to 1990, Mr. Alito served in a succession of government posts, including assistant to the solicitor general and deputy assistant attorney general in the Reagan administration.

That's where Mr. Hasson learned firsthand that Mr. Alito, whom he calls a "serious Catholic," has a laser-like command of constitutional law. "When I walked into his office with a draft opinion, I was always certain that no matter how prepared I was, he would see the case from three different angles I had never thought of, and ask 11 different questions that had never occurred to me."

In 1990, President George H. W. Bush nominated Mr. Alito to the 3rd Circuit, and the Senate unanimously confirmed him by a voice vote.

Times have changed. The day after President George W. Bush nominated Mr. Alito to the Supreme Court, headlines bristled with the "F" word: filibuster. Both Sen. Reid and California Democrat Barbara Boxer characterized that option as "on the table."

Meanwhile, Republican moderates, including Lindsey Graham of South Carolina and Mike DeWine of Ohio, both members of the so-called "Gang of 14" that brokered last summer's amorphous anti-filibuster pact, defended Mr. Alito. Mr. Graham warned prickly Democrats that a filibuster against the new nominee based on his conservatism "would not stand."

Amid the rhetorical duel, judiciary committee members will be exegeting Mr. Alito's judicial opinions, and particularly his now-famous dissent in Planned Parenthood v. Casey. The case challenged a 1989 Pennsylvania law that imposed some abortion restrictions, including a 24-hour waiting period, parental notification, and a requirement that married women seeking abortions notify their husbands.

In his dissent, which Chief Justice William Rehnquist later quoted when the case reached the high court, Mr. Alito wrote, "Pennsylvania has a legitimate interest in furthering the husband's interest in the fate of the fetus."

Since most women seeking abortions are single, and since married women usually involve their husbands in abortion decisions, and since the law in question provided several exceptions to protect married women who did not want to tell their husbands, Mr. Alito reasoned the law sound. "I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision could harm a completely unknown number of women," he wrote.

Hardly a radical declaration. Yet abortion supporters already are declaring Mr. Alito a radical. This though he apparently overlooked a golden opportunity to demonstrate his abortion animus when few would have blamed him for doing so.

In 2000, in Planned Parenthood v. Farmer, he joined a decision that struck down a New Jersey law banning partial-birth abortion (PBA). Given that even self-proclaimed pro-choice Democrats have voted in recent years to ban the grisly late-term procedure, it would seem that Mr. Alito could in Farmer have safely indulged any bent toward ideological activism were he inclined to do so. Instead, he wrote that since the U. S. Supreme Court had invalidated a similar Nebraska law because it lacked a health exception, the New Jersey law had to go.

Careful analysis, and alignment with both precedent and the Constitution itself, have marked Mr. Alito's career. In fact, the judge has on more than one occasion applied multiple Supreme Court precedents in arriving at his opinions, only to have the high court later disagree with itself and strike off in a new direction.

One force that could influence the direction of Mr. Alito's confirmation is Senate Judiciary chairman Arlen Specter. Like Mr. Alito, whose 3rd Circuit is based in Philadelphia, the senator is a fixture in Pennsylvania legal circles and has known the judge for more than 20 years. But the nature of their relationship is a question mark. Mr. Specter prepared a case before Mr. Alito in 1994, when a suit filed by Mr. Specter to keep a Navy shipyard open reached the appellate court. The court sided with Mr. Specter, with Mr. Alito dissenting. Mr. Specter was invested in the case enough to argue it personally before the Supreme Court, which eventually adopted Mr. Alito's dissent.

Even so, when Justice O'Connor announced her retirement, Mr. Specter said Mr. Alito would make a good successor, the Philadelphia Inquirer reported in July. So far, the senator seems cautiously supportive. After his Capitol Hill meeting with Mr. Alito last week, he said the nominee would likely wow senators during confirmation hearings.

Mr. Specter may quell or foment rumor, allow committee Democrats to harangue the nominee, or call them to order. He may help Mr. Alito, as he helped John Roberts when the senator demanded that the National Abortion Rights Action League withdraw an arguably slanderous ad linking the Supreme Court nominee to abortion-clinic bombers. Or he could sit by and watch the nominee's unraveling, as he did with Harriet Miers. Either way, Mr. Specter's role will be pivotal. The liberal Republican has the power to make Mr. Alito's confirmation easy, or to make it hard.

-with reporting by John Dawson