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Friday, October 28, 2005

Sam Alito For The Supreme Court?

Orrin Kerr, writing at Volokh, speculates that the next nominee will be Sam Alito:
I've seen some speculation around the blogosphere that Judge Samuel Alito of the Third Circuit may be tapped by President Bush to fill the O'Connor slot, perhaps as early as tomorrow. ... While Alito is well-known for his early dissent in Planned Parenthood v. Casey, generally speaking he hasn't approached the job of appellate judge with an ideological edge. Second, Judge Alito is one of the most likable people you'll ever meet. He comes off as modest, quiet, and very thoughtful, but he also has a sharp sense of humor. If picked, I think he will be (and should be) a popular choice in the Senate.
Very much in the Roberts model, and that, I think, is what the Bush administration will be looking for. Nominating a federal judge lowers the bar for confirmation scrutiny

Alito is a theorist of the law. See his memo on FRAP 32.1 (pdf). He is a Democrat's worse nightmare, really. Princeton, Yale, DC Court of Appeals. The hysterical-uterus lobby (such as NARAL) will hate him. He dissented on a decision striking a Pennsylvania law that required married women to inform their husbands before getting an abortion. See US News from July regarding Alito:
"Sam Alito is in my mind the strongest candidate on the list," says Pepperdine law Prof. Douglas Kmiec. "I know them all . . . but I think Sam is a standout because he's a judge's judge. He approaches cases with impartiality and open-mindedness."
In 1997, Alito authored the majority opinion upholding a city's right to stage a holiday display that included a Nativity scene and a menorah because the city also included secular symbols and a banner emphasizing the importance of diversity. In Planned Parenthood v. Casey, Alito was the sole dissenter on the Third Circuit, which struck a Pennsylvania law that required women seeking abortions to consult their husbands. He argued that many of the potential reasons for an abortion, such as "economic constraints, future plans, or the husbands' previously expressed opposition . . . may be obviated by discussion prior to abortion." The case went on to the Supreme Court, which upheld the lower court's decision 6 to 3.
In Saxe v. State College Area School District, Alito, writing for the panel, argued that the school does not have the right to punish students for vulgar language or harassment when it doesn't disrupt the school day. "Sam struck that down as a violation of free speech," Kmiec says. "That's not a conservative outcome."
So you say, buddy. Most conservatives I know are die-hard on free speech. It's the liberal theorists who want to end the pernicious effects of the First Amendment.

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