< meta name="DC.Date.Valid.End" content="20050825"> Amendment Nine: Judge Alito

Monday, October 31, 2005

Judge Alito

aka "Scalito" is nominated, will be confirmed, no filibuster. He went to Princeton and Yale Law. Been on the 3rd circuit for almost 15 years. Good conservative credentials, though like Scalia, has an impressive libertarian streak. Despite the label of conservative, he's pretty much of the O'Connor mold on religious freedom. In ACLU v. Schundler 168 F.3d 92 (3d. Cir. 19990) he held a municipal holiday display featuring a creche and menorah is kosher (I mean, doesn't violate the Establishment clause) because, among other things, there were secular displays and a banner promoting racial diversity included. The headline case for him, at least as far as the radical religious right is concerned, was Planned Parenthood v. Casey where he was the lone dissenter, 947 F.2d 682 (3d Cir. 1991). Arguing that under the rational relation test PA's law should have been upheld, Alito's opinion was singled out by Rehnquist and held up as a model in the S. Ct's dissent (6-3). So the radical religious right is getting someone they think will overturn Roe. Probably not a fair conclusion though.

On the freedom side of things, Scalito has granted a Habeas writ for an African-American defendant where testimony that a juror had used racially derogatory remarks was excluded. Williams v. Price 343 F.3d 223 (3d Cir. 2003). I'm not even sure Scalia would have done that.

In Shore Regional High, 381 F.3d 194 (3d Cir. 2004), he authored the majority opinion holding that where a student is not protected from bullying and taunting by fellow students based on perceived sexual orientation, the school district has failed to provide a free and appropriate public education, and has violated the Individuals w/Disabilities Act (based on taunts about lack of athleticism). A "compassionate" conservative?

And in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), which I think is his most revealing opinion, Alito held that eligibility for asylum could be established where petitioner shows probable persecution on the basis of gender, belief in feminism, or membership in a feminist group.

So, not exactly a radical religious hothead, but someone clearly on the conservative side of things (as are most judges-despite what the fat white windbags on talk radio tell you). Also, I don't think his stance on gay rights has been deeply explored. The body of his work suggests he supports equal treatment under the law, though exactly which law (states or feds) remains to be seen. I would assume someone who dissented in Casey couldn't logically backtrack and strike down the Mass. statute, or any similar such statutes, on gay marriage.

UPDATE: Think Progress has the other view on Alito. I'd use it as a counterweight. I'm not sure my prediction of no filibuster is correct, but here's what partisans think of Alito. I didn't know about his FMLA decision. Thats sacred ground for many.