How Alito would shift high court on key issues

His confirmation hearings begin in the Senate Monday.

By , Staff writer of The Christian Science Monitor

The potential replacement of Justice Sandra Day O'Connor with appeals court Judge Samuel Alito sets the stage for a series of significant shifts in the legal landscape at the US Supreme Court.

It would bring into play some of the nation's most divisive issues, including abortion, affirmative action, campaign-finance reform, and the death penalty. And it would fundamentally alter the internal dynamics of the sharply divided nine-member court in which Justice O'Connor has single-handedly shaped much of American law by deftly wielding a decisive fifth vote in major cases.

Now, with the Senate Judiciary Committee set to begin confirmation hearings for Judge Alito on Monday, a key question is: Just how conservative would the high court become with Alito - including in the murky area of White House authority to wage the war on terrorism.

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"It seems to me pretty clear that you can identify a half-dozen areas of the law that will probably change decisively from an O'Connor to an Alito vote," says Bruce Fein, a Washington, D.C., lawyer who served with Alito in the Reagan Justice Department.

Where O'Connor rejected restrictions on abortion, Alito is likely to uphold them, legal analysts say. Where O'Connor voted to uphold an affirmative action plan at the University of Michigan Law School, Alito is more likely to vote with conservatives who viewed it as an impermissible quota system. He is likely to vote to uphold the kind of public displays of the Ten Commandments O'Connor voted last summer to strike down, analysts say.

In death penalty cases he is expected to side with conservatives who reject the "evolving standard of decency" test embraced by O'Connor, which has made it more difficult for states to carry out executions. He also will be more likely than O'Connor to let stand death sentences despite claims that defense lawyers weren't effective enough. And even though O'Connor is viewed as a reliable vote in states' rights cases, Alito is expected to be an even stronger champion.

One looming question about Alito is how he might vote in cases challenging President Bush's unilateral assertion of powers as commander in chief to wage the war on terror.

O'Connor has staked out a middle position on that issue, deferring to some extent to the White House, but making clear at the same time that the Constitution requires a degree of judicial oversight.

Some analysts believe Alito would take a much harder line against the White House, siding with conservative Justice Antonin Scalia, who completely rejected the White House position in a 2004 case involving an American held indefinitely in military custody as an enemy combatant.

Others suggest Alito will defer to the president even more than O'Connor, granting the executive branch broad power to respond unilaterally to what it views as national emergencies. Some analysts see this as a warning flag, given recent controversies over Mr. Bush's authorization of warrantless surveillance within the US, the establishment of military tribunals, and harsh treatment of terror suspects.

"I think the most dangerous aspect of Sam Alito is his deference to the government," says Jonathan Turley, a professor at George Washington University School of Law. "When it comes to government abuse and assertions of government power, Sam Alito is an empty robe."

Not since the 1987 nomination of Judge Robert Bork to replace retiring moderate Justice Lewis Powell has the high court faced such an abrupt move to the right in so many areas at once. And not since the Bork nomination has there been such a large and determined coalition assembled in opposition to a high court nominee, analysts say.

Supporters portray Alito as a careful, conservative jurist within the mainstream of American legal thought. Opponents paint him as an agenda-driven ideologue.

For the past two months journalists and legal analysts have been poring over hundreds of Alito decisions issued during his 15 years as a judge on the Philadelphia-based Third US Circuit Court of Appeals. They have also examined memos and letters he wrote while working as a Justice Department lawyer during the Reagan administration. "I am particularly proud of my contribution in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion," Alito wrote in one letter.

In a 1985 memo, Alito made clear his legal judgment that the landmark abortion case, Roe v. Wade, should at some point be overturned. But he said in the memo that the 1985 case then before the high court was not the right time to push for it. Instead, he counseled his Reagan administration colleagues to urge the court to cut back on abortion protections.

Some Alito supporters have downplayed the papers, saying they were produced 20 years ago when Alito was a young lawyer, and not yet a judge. They urge senators to focus instead on Alito's work as an appeals court judge.

But analysts like Mr. Fein say that the memos are a far more revealing source of insight than Alito's appeals court decisions when attempting to assess how Alito might behave as a Supreme Court justice. "The court of appeals isn't in an advocacy role, the appeals court is bound by the rulings of the Supreme Court," he says, "whereas a Justice Department lawyer ... is trying to anticipate and trying to nudge the court in a direction it thinks is correct and right."

Making judgments about where the law should be headed rather than studiously following the guidance of other courts is closer to the role of a Supreme Court justice, Fein says. Rather than backing away from the positions he advocated in the Justice Department, Alito should embrace and defend them. "In 2006, the country is ready for a conservative," he says.

Professor Turley agrees that the Alito memos are revealing, but he doesn't believe they help Alito. Instead, he says, they suggest a justice who may be oriented toward achieving conservative results rather than staking out and adhering to a principled position.

"I think you see that in his memos as an attorney," Turley says. "He believed that Roe v. Wade was wrongly decided and should be overturned. However, he argued that it should be gutted rather than overturned for tactical purposes."

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