How Alito would shift high court on key issues
His confirmation hearings begin in the Senate Monday.
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.Skip to next paragraph
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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.
"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.