Alito would likely change Supreme Court in unexpected ways

WASHINGTON—The Senate Judiciary Committee moved Samuel Alito one step closer to a lifetime seat on the Supreme Court on Tuesday, where he could immediately shift the court's stance on high-profile issues such as abortion, the death penalty, religion and executive power.

Yet it is Alito's vision of judicial restraint and a limited role for courts—a vision he shares with new Chief Justice John G. Roberts—that could produce an even more fundamental change in the high court.

Together, the two are likely to bring a narrow and lawyerly approach to deciding cases that, if persuasive, could help remove the justices from some of the high-profile political squabbles that now define them.

"Overall, I think the court could appear a lot less political with these two new justices, and that's a good thing," said Jonathan Adler, a law professor at Case Western Reserve University in Cleveland and a constitutional scholar. "Both Roberts and Alito seem to feel that courts are most effective and respected when they operate within a limited role, rather than seeking to intrude into a lot of other contexts."

Cambridge University professor and court expert David Garrow agreed.

"Neither has much of an appetite for grand declarations," he said of Roberts and Alito. "Once you get away from the left-right spectrum that everyone views the court in, I think you see them having a very different kind of effect on things."

Alito's confirmation hearings were hard fought in the Senate Judiciary Committee earlier this month and inspired bitterly partisan campaigns on both sides, but his confirmation seems all but assured after the committee voted Tuesday to move debate to the Senate floor.

The 10-8 party vote portends an equally partisan outcome in the full Senate and one of the slimmest confirmation margins since Clarence Thomas got 52 votes in 1991.

Judiciary Committee Republicans applauded Alito's experience and intellect and complained that Democrats were judging Alito only on ideological grounds. Democrats said Alito didn't deserve their votes because as a conservative jurist he would alter the balance of the court.

Sen. Lindsey Graham, R-S.C., said the political split on Alito's nomination illustrated a dramatic shift since liberal-leaning jurists such as Ruth Bader Ginsburg and Stephen G. Breyer won confirmation to the court with overwhelming bipartisan votes.

"What's going on in the Judge Alito nomination, I think, is not advising and consenting. It's more about politics," Graham said. "We're jockeying for the next election. And over time we'll erode the quality of the judiciary."

Without question, Alito's presence could have an immediate impact on many attention-grabbing issues as the high court. And because his outlook is markedly different from retiring Supreme Court Justice Sandra Day O'Connor's, his vote could be crucial.

Alito won't likely see the partial-birth abortion ban the same way O'Connor did in 2000, when she cast the deciding vote to strike it down because it lacked a health exception.

Alito's strong First Amendment leanings could also lead him to see campaign regulations differently from O'Connor. This spring, the court will decide whether Vermont can limit not only campaign contributions, but also expenditures by candidates in statewide races.

Alito has also been particularly loath to overturn death sentences as an appellate judge, while O'Connor has been key to the court's ongoing review of capital punishment standards. This term alone, the court is considering several death penalty cases, and experts expect that Alito's arrival might slow the pace of reform dictated by the court.

As the court begins to consider challenges to the Bush administration's bold assertions of executive authority, Alito's record suggests strongly that he'll be more deferential than O'Connor was.

"I don't think there's any question that Alito, like Roberts, will be voting an awful lot with Justices Antonin Scalia and Clarence Thomas," said Garrow, referring to the court's most conservative jurists.

But more than these controversial single issues, Alito's allegiance to a minimalist court could magnify his influence.

In his appellate court decisions, Alito tended toward scholarly, reserved opinions that were long on technical analysis and short on sweeping pronouncements. While his decisions almost uniformly tacked to the right, his approach was humble and often persuasive to other judges on his court.

Already, there are signs that Roberts, in the chief justice's job since October, may be pushing that approach at the high court with some success. The justices have decided several seemingly high-profile cases already this term—on assisted suicide, abortion regulations, the scope of disability law and campaign finance regulations.

But in each case, the court avoided addressing the central, polarizing issues in the cases and decided them on narrow legal terms. None turned out to be a headline-grabbing decision.

`They're not ducking the issues in those cases," said Adler. "They're just saying they have no need to answer things they don't have to answer."

Doug Kendall, an environmental lawyer and executive director of a public-interest law firm in Washington, said that while the idea of judicial restraint is hard to oppose, it may be difficult to define in practical terms.

Judges frequently must decide between competing interpretations of law, and the most restrained decision from a judicial perspective yields the most activist result in terms of the law's intent and impact.

"Is it restrained to accept a dramatically restrictive interpretation of, say, clean water regulations to avoid addressing broader constitutional issues about the law?" Kendall asked. "I suppose it is in one way, but that's also pretty activist in another way because it limits the reach that Congress intended for that law."

Still, Kendall said he can be optimistic in theory about how Roberts and Alito will approach their jobs on the high court.

"I think what we're seeing so far with Roberts may be encouraging," he said. "But Alito's conservative record suggests he may not be quite the same. We'll see."


(c) 2006, Knight Ridder/Tribune Information Services.

PHOTOS (from KRT Photo Service, 202-383-6099): SCOTUS-ALITO

GRAPHIC (from KRT Graphics, 202-383-6064): 20060124 SCOTUS votes

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