WASHINGTON — It may be symbolic of the Senate confirmation battle ahead that federal appeals court Judge Samuel Alito's views on abortion were rejected by the woman he would replace on the Supreme Court, Justice Sandra Day O’Connor.
Early reaction from Democratic senators indicated that the historic battle over O'Connor's successor may well end in Democrats trying to block a vote on the nominee with a filibuster.
Contributing to that assessment is a 1991 case in which Alito dissented when his colleagues on the U.S. Court of Appeals for the Third Circuit struck down a spousal notification provision in Pennsylvania’s law restricting abortion.
In that case, Planned Parenthood v. Casey, Alito argued that the Pennsylvania legislature was well within its rights in requiring that women inform their husbands prior to getting an abortion.
He argued that the legislature “could have reasonably concluded” that the spousal notice provision would “properly further a husband's interests in the fetus."
“Needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of this provision is a matter of grave concern,” he said.
But Alito argued that “it is apparent that the Pennsylvania legislature considered this problem” and tried to prevent the law from harming women by allowing four exceptions to the spousal notice rule. One of the exceptions was if the pregnant woman had reason to believe that notifying her husband would likely result in the infliction of bodily injury to her.
Except for the spousal notification rule, the appeals court upheld the Pennsylvania law -- brought by then-Gov. Robert Casey -- which included a requirement that women wait for 24 hours for an abortion after a doctor provided them with information on the procedure and the development of the fetus. The law also required that a minor seeking an abortion get the consent of one parent.
O'Connor rejects Alito's dissent
The following year, the Supreme Court handed down its landmark ruling in Planned Parenthood v. Casey. The majority decision was co-authored by O’Connor and joined by Justices Anthony Kennedy and David Souter.
In that decision, O’Connor and her allies said the spousal notification part of the Pennsylvania law did in fact impose an “undue burden” on a woman seeking an abortion.
The majority upheld the rest of the statute.
It is the fear that Alito might vote to reverse Planned Parenthood v. Casey and its precursor, Roe v. Wade, that will supply much of the fervor in the Senate confirmation battle.
Democrats criticize nomination
Liberal Democratic senators immediately sent signals they'll fight Alito's 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," said Sen. Charles Schumer, D-N.Y. He said Alito "would make the court less diverse and far more conservative."
Schumer indicated that Democrats in the Senate will seek documents from Alito's tenure at the Justice Department, where he served prior to being appointed to the court of appeals.
When reporters asked him about a potential filibuster of Alito, Schumer said "nothing is on the table, nothing is off the table."
In a written statement issued just minutes after Bush announced Alito’s nomination, Sen. Edward Kennedy, D-Mass., contended that the president ought to have replaced O’Connor with another O’Connor who would maintain the court’s status quo.
“The far right has now forced the president to choose a nominee that they think has views as extreme as their own,” Kennedy said. “There are many serious questions about whether Judge Alito is a mainstream nominee fit to fill the seat of Justice O'Connor. She was able to unite and strengthen our country through her careful, non-ideological approach to the law.”
But Majority Leader Bill Frist rebuffed Democrats' hints of a filibuster. "If Democrats want a fight, they'll get a fight," he said.
Under the terms of a May 23 accord signed by 14 senators, known as "the Gang of 14," those senators agreed they would not support a filibuster of a judicial nominee, unless there were undefined "extraordinary circumstances" that compelled such a filibuster. Seven senators from each party joined the May 23 accord.
One of them, Sen. Mike DeWine, R-Ohio, told MSNBC Monday that it was "hard to believe" that Alito's nomination would qualify as an extraordinary circumstance under the terms of the May 23 agreement.
Sen. Sam Brownback, R- Kan., said he thought Republicans would have enough votes to abolish filibusters of judicial nominees, if Democrats insist on trying to block Alito.
He said he did not agree with Democrats who sought to preserve the current ideological balance on the court by seeking "another O'Connor" to replace O'Connor.
Referring to Schumer, Brownback said, "I don't know that he was against Ruth Bader Ginsburg," a liberal judge nominated by President Clinton in 1993 to replace the more conservative Byron White.
"The president ran openly on the type of jurist he would appoint to the Supreme Court. I'm sure Sen. Schumer opposed President Bush's run for the presidency but it looks to me like the president is putting forward a person that he campaigned for," Brownback said.
Alito has served on the U.S. Court of Appeals for the Third Circuit since 1990. Prior to joining the bench, he served in the Justice Department as a prosecutor in New Jersey and as an official in the Solicitor General’s office, which argues cases before the high court
While working at the Department of Justice, Alito argued before the Supreme Court 12 times.
He is a member in good standing of the Federalist Society, the influential group of conservative lawyers who advocate an originalist reading of the Constitution that sticks closely to text and the history of the writing of the Constitution.
When O’Connor’s retirement was first announced last July, Doug Kmiec, a former Justice Department official in the Reagan administration who now teaches at Pepperdine University Law School, touted Alito as her potential successor.
“If one seeks the qualities of a judge (temperament, impartiality, integrity, dedication) and substantial federal service in the executive and judiciary departments alike, there are few better. Best of all, he is unpretentious and entirely self-effacing,” Kmiec said.
“Judge Alito is a constitutionalist who has weathered one of the more liberal federal circuit courts in the country,” said Manuel Miranda, a former aide to Senate Majority Leader Bill Frist, who is now a conservative “grass-tops” leader on judicial nominations.
“As former counsel on religious liberty for the Senate Majority Leader, I know Judge Alito is a special friend of religious liberty — America's first civil right,” Miranda added.
Here are some of Alito’s best known decisions:
- In 1999, Alito ruled against the city of Newark, N.J., after it dismissed two Sunni Muslim police officers who refused to shave their beards.
Newark police department regulations required police officers to be clean shaven, but exempted officers who grew beards for medical reasons.
The officers argued that the Koran required them to grow beards.
Alito said, "the department has provided no legitimate explanation as to why the presence of officers who wear beards for medical reasons does not have this effect but the presence of officers who wear beards for religious reasons would ..."
- In 2004, Alito ruled that a Pennsylvania law banning paid advertisements for alcohol in college newspapers was unconstitutional. "If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment," Alito wrote for a three-judge panel.
- In 1996, Alito dissented from the majority on his court, when it upheld the conviction of a firearms dealer for selling two submachine guns at a gun show.
The firearms dealer argued that the Constitution’s Commerce Clause, which empowers Congress to regulate interstate commerce, does not allow it to outlaw the selling of a particular type of gun within the borders of one state.
How to outlaw machine guns
Alito cited the Supreme Court’s ruling in United States v. Lopez which had been issued just the year before and which limited Congress’s power to pass laws banning the carrying of a gun near a school.
"Was United States v. Lopez a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?" Alito asked. "The statutory provision challenged in this case... is the closest extant relative of the statute struck down in Lopez... Both are criminal statutes that regulate the purely intrastate possession of firearms."
He also explained that "needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done."
He also said the federal law banning intrastate machine gun sales and possession "might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link."
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