The Alito nomination

So far, I think the best analysis of Samuel Alito's record and what we know of his views is provided by Julian Sanchez at Reason's Hit & Run blog: here, here, and here. Good op-ed by Ann Althouse in the New York Times. The upshot of it seems to be that Alito is not the Scalia-like ideologue he's made out to be.

Here's a particularly interesting tidbit:

According to at least one former Alito clerk, Nora Demleitner, he is not the rabid conservative he's so far been made out to be. Demleitner cites Alito's majority decision in the 1993 case Fatin v. INS, in which Alito held that an Iranian woman could be granted asylum if she could show that complying with her country's "gender specific laws and repressive social norms" would be deeply abhorrent to her.

"To this day, it remains one of the most progressive opinions in asylum law on gender-based persecution," says Demleitner.

A law professor at Hofstra University who clerked for Alito from 1992 to 1993, Demleitner said she and her former clerks are scratching their heads at the appellation "Scalito," which news reports say is Alito's nickname, and which plays into the notion that Alito is a carbon copy of Justice Antonin Scalia.

"The only thing we can think of is demographics," she says. "They're both Italian Catholics from Trenton.

"He's not an originalist; that's the most important thing. I don't see him saying, 'As the Framers said in 1789,' the way Scalia writes his opinions," adds Demleitner, who says she's a liberal Democrat. "I was listening to one reporter this morning and I thought she was describing Attila the Hun and not Sam Alito."

(Hat tip: Andrew Sullivan.)


There is, of course, Alito's controversial dissent in Planned Parenthood vs. Casey, upholding Pennsylvania's spousal notification (not consent) law for abortions. A good analysis of his dissent can be found at Patterico's. See also Orin Kerr, at The Volokh Conspiracy, for a discussion of another Alito opinion, concurring in a ruling striking down New Jersey's partial-birth abortion ban. Based on these two opinions, I don't see how Alito can be pegged as a pro-life zealot.

For the record, while I am staunchly pro-choice, I think that spousal notification is a painfully complex issue. Yes, it's the woman's body. It's also the man's future child, and while there may be no good way of balancing the man's and the woman's interests when those interests compete (i.e. when one of them wants to have the child and the other doesn't), I think that our current system, in which women have all the reproductive rights and men have the responsibilities, is seriously flawed. I don't believe we can expect men to be equal partners in child-rearing while denying them any say in reproductive decisions. Paternal consent, in my view, goes too far in infringing on the woman's bodily autonomy; paternal notification, on the other hand -- with exemptions when there is domestic violence or other complicating factors -- may not be such an onerous measure.

There is also, of course, the issue of Alito's own gender. Eric Muller, who personally knows and likes Alito, expresses disappointment that one of only two women on the U.S. Supreme court is being replaced by a man. I share that disappointment on some level; I would have especially liked to see a conservative woman on the high court (particularly a conservative with libertarian leanings). However, I also don't like the idea of gender -- or race, or ethnicity, or religion -- being the determining factor in someone's selection for a post or a job. I don't mind it being a "plus"; but if, after the Harriet Miers fiasco, Bush had picked another woman -- unless this woman was clearly the best qualified candidate -- it would have been a clear statement that the vacant seat was a "woman's seat." And that, I think, is something best avoided.

Update: In Slate.com, University of Virginia law professor Richard Schragger makes the case that Alito's rulings show a consistent tendency to favor laws restricting abortion as much as the Supreme Court permits.