Scalia Lite -- But Good

James J. Kilpatrick
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Posted: Jan 02, 2006 9:08 AM

In the nomination of Judge Samuel Alito to the Supreme Court, the president has picked an experienced jurist whom Sen. Ted Kennedy describes as "extreme." That should be enough to assure his confirmation.

The senior senator from Massachusetts is not alone in his opposition. Most of the usual suspects have rattled their cowbells -- People for the American Way, the AFL-CIO, Pro-Choice America, and the Leadership Conference on Civil Rights. With enemies like these, who needs Rush Limbaugh? After the showboating stops, Alito will be comfortably confirmed.

Some conservative court watchers doubtless would have preferred another nominee. I was rooting for either Judge J. Harvie Wilkinson or Judge Mike Luttig from the 4th Circuit. From the 7th Circuit, either Richard Posner or Frank Easterbrook would have gifted the high court with a vigorous writer. Apart from the two Lucrezia Borgias who have been widely mentioned for the high court, other qualified women are serving admirably on lower benches and could have won the presidential nod.

We take what we can get. Judge Alito has been widely described over the past 48 hours as a modest man. As Winston Churchill remarked of Clement Attlee, the judge has much to be modest about. Since he went on the bench 15 years ago, Alito has written 300 substantive majority opinions for the 3rd Circuit and perhaps a fifth as many opinions in dissent. On Monday, reporters hustled busily to find a dozen that merited substantial quotation. Let us be patient.

Most writers have focused upon Judge Alito's dissent in Planned Parenthood v. Casey , the major abortion case of 1991. Here he argued in favor of a Pennsylvania law that required women to notify their husbands before undergoing an abortion. I felt at the time that women were entitled to more privacy than the judge wanted to accord them -- a position the Supreme Court later upheld.

Evidently, to infer from the press comment so far, Judge Alito's position on abortion will weigh heavily in his Senate hearing. Other cases, both civil and criminal, offer a more balanced review. For example, his opinion for the 3rd Circuit in the criminal case of Ronald Rompilla struck some of us as correctly decided.

The Rompilla case involved an especially gruesome murder in Allentown, Pa., in January 1988. The victim, James Scanlon, had been stabbed repeatedly and set on fire. A jury sentenced Rompilla to death, and the long appellate process began. Finally the case went to the 3rd Circuit on the defendant's contention that he had been represented ineffectively by counsel. Judge Alito refused to accept that argument. He held that Rompilla had received all the legal counsel that the Sixth Amendment demands. On appeal the Supreme Court reversed him 5-4 and vacated the death sentence.

In his majority opinion for the high court, Justice David Souter opened his heart and let it bleed: The poor dear defendant had been brutally mistreated in his Dickensian childhood. "There were no expressions of parental love, affection or approval. Instead, the boy was subjected to yelling and abuse." If Rompilla had enjoyed more effective counsel, Souter held, the death sentence might have been averted.

Justice Anthony Kennedy, like Judge Alito below, was made of much sterner stuff. Kennedy found his five colleagues "unreasonable" and their analysis "misguided." Rompilla had received all the legal representation to which the Constitution entitles him. That was Judge Alito's sensible view of the Sixth Amendment. He should have been affirmed.

In another case, ACLU v. Schundler (1999), Alito took a sound view of the religious clauses of the First Amendment. The question was whether a City Hall display at Christmastime violated the Constitution. True, the yuletide display included a child, a Mary and a Joseph, but as I recall, the display also was heavily seasoned with a sled, a few candy canes and two scraggly camels. I may have imagined the camels. In any event, the judge looked at the show and concluded that the state was not about to be overthrown by the church. Sound fellow.

In announcing Alito's nomination on Monday, President Bush described him as "one of the most accomplished and respected judges in America." One thinks of Dr. Samuel Johnson's reminder that in lapidary inscriptions men are not upon their oaths. On to the hearings! Let the fishfry proceed!