Judicial Philosophy and Myth-Making in Judge Alito’s Confirmation

After the disappointing resignation of Harriet Miers, one of President Bush’s Supreme Court nominations, the President chose Judge Samuel Alito on October 31, 2005. The selection was met by effusive praise from inside the Republican Party and wary criticism by the Democrats. Conservatives identified two qualities in Alito that they felt Miers had lacked. He has judicial experience, having written over 700 opinions. The veteran ex-prosecutor currently holds a post on the U.S. Court of Appeals for the Third Circuit. The man also has well-defined stances on hot-bed issues like abortion, gun control, and free speech. Liberals attacked a record that they contend is too conservative and too reactionary for the American people.


A thorough examination of Alito’s record depicts him as a conservative-leaning judge who believes in judicial restraint. For the very contentious issue of abortion, Alito appears at first to be a firm anti-abortionist. In Planned Parenthood v. Casey (1991), Alito dissented. He believed that a Pennsylvania law requiring wives to tell their husbands before receiving an abortion did not create an “undue burden” for mothers. He provided a few exceptions to this rule; namely, the father cannot be located, her husband is not the father, the pregnancy was a result of a reported sexual assault, or the notification would lead to physical violence against the woman. In another court case, Planned Parenthood of Central New Jersey v. Farmer, Alito struck down a law regarding intact dilation and extraction or “partial birth abortions.” Supporters of Alito cite this case as evidence of less extreme conservative views and a steadfast adherence to precedent set by the Supreme Court. A nearly identical case in Nebraska by the Supreme Court struck down a similar law, so Alito responded by obeying the highest court.

For the issue of the separation of church and state, Alito ruled to uphold the display of religious and secular symbols at city hall. In ACLU v. New Jersey, Alito decided that the display did not violate the Establishment Clause. He noted that the Supreme Court precedents are vague as to what is allowed and what is not. He wrote that due to these ambiguities, “Under these circumstances, the mere fact that city officials miscalculate and approve a display that is found by the federal courts to cross over the line is hardly proof of the officials’ bad faith.” He concluded that the lawsuit against the city should be dropped. The case also followed the Supreme Court precedent of County of Allegheny v. ACLU where the court ruled that religious symbols like a Menorah are allowed if these displays also include secular symbols.

Alito ruled in Chittister v. Department of Community and Economic Development (2004) that the Family Medical Leave Act supercedes Congress’ power. The Act required employers to give employees time off for childbirth or health conditions. Alito disagreed with the Act writing, “Unlike the Equal Protection Clause, which the FMLA is said to enforce, the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave.” Critics have argued that this case demonstrates Alito’s restriction of workers’ rights while supporters have argued that it indicates Alito’s preference for a smaller national government and Alito’s aversion to broad interpretations of the constitution.

In the case Doe v. Groody (2004) Alito dissented with a majority in a ruling about unreasonable search and seizures. The police were executing a standard search when they strip searched a mother and her 10 year old daughter, which was not covered within the warrant. Alito believed that reasonable police officers would interpret the warrant to include such a search, especially considering that drug dealers frequently hide contraband on young children during police raids. He writes, “The majority notes that this passage does not literally state that narcotics dealers often hide drugs on family members and young children, but this is precisely the sort of technical, legalistic reading that is out of place in interpreting a search warrant or supporting affidavit.” In this case Alito takes a practical stance on crime-fighting. He argues that the search should be valid considering it combats the hiding of contraband. His critics argue that this search comes at the cost of the rights of suspected criminals.

In Saxe v. State College Area School District (1999), Alito struck down a public school district’s anti-harassment policy. Alito wrote that free speech should cover offensive speech as well, including “statements that impugn another’s race or national origin or that denigrate religious beliefs.” Shore Regional High School Board of Education v. P.S. deals with the case of a student who transferred to a different school due to Shore Regional not protecting him from a habitual bully. Alito ruled with a unanimous court that allowed such a transfer since the school had not made accommodations for the students under the Individuals with Disabilities Education Act. The issues and rulings in these cases regarding strict free speech and disability rights seem to not fit the profile of modern conservatism.

Perhaps Alito’s most controversial ruling, U.S. v. Rybar, deals with machine guns. Raymond Rybar, Jr. was convicted on two counts for violating a law making it “unlawful for any person to transfer or possess a machine gun.” The court struck down his challenge that claimed the law was beyond Congress’ commerce power and violated the Second Amendment. In Alito’s dissent, he shifts the debate from gun rights to federalism. He cites the precedent of U.S. v. Lopez and votes to overturn the law since, “Congress made no findings regarding the link between the intrastate activity regulated by these laws and interstate commerce.” His ruling was unpopular among other judges and is quite distressing to gun control activists. The ruling should figure prominently in his confirmation hearings.

Alito’s record reveals a judicial philosophy that is much more complex than many would claim. He ruled in favor of free speech protections in Saxe v. State College Area School District and he ruled in favor of broad applications of the Individuals with Disabilities Education Act. However, his decisions on gun control, search and seizures, abortion, and religious reveal a definite conservative slant. The rulings indicate less of a conservative political ideology like Justice Scalia but more of a conservative judicial philosophy of judicial restraint and strict constructionism like Judge Rehnquist. The best example of this is in his ruling in Planned Parenthood of Central New Jersey v. Farmer where he struck down a partial birth abortion ban in deference to the Supreme Court. Certainly he agreed with the law, but he had to vote against it due to precedent.

Judicial philosophies are historically notoriously difficult to determine before a Justice actually begins to hear cases. Dwight D. Eisenhower appointed Earl Warren and later remarked that it was “the biggest damned fool mistake I’ve ever made in my life.” Likewise, Presidents Richard Nixon and George Bush Sr. would certainly like to rethink their appointments of Harry Blackmun, the majority opinion writer of Roe v. Wade, and David Souter, a dissenter in Bush v. Gore (2000). Arguably, the framing of a candidate by his opposition is just as important as the record to his judicial confirmation. There exists a process of myth-making by the opposition. The critics of a candidate choose a negative theme to highlight about the figure. Oftentimes, this theme is personal. Politics are certainly not absent from the judicial process.

The myth-making process is most obvious in the past four failed nominees for the Supreme Court. In 1970 Richard Nixon appointed Harold Carswell to replace the liberal-leaning Abe Fortas. The Carswell nomination was marred with many problems; the candidate had praised White supremacy early in his career and 58% of his decisions were overturned. His detractors cast Carswell as a mediocre man, unsuited for a position on the venerable court. The framing of the candidate as a mediocre intellect worked so well that even his supporters appeared to agree with the sentiment. Republican Senator Roman Hruska famously remarked, “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they?” The nomination was rejected 51-45.

In 1987 President Reagan nominated legal scholar Robert Bork to the court. His nomination was blindsided by a comment by Senator Edward Kennedy made only 45 minutes after the announcement of the nomination. Kennedy said, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, children could not be taught about evolution.” The comments depicted Bork as an arch-conservative whose opinions are clearly outside of the mainstream. His nomination failed by a vote of 58-42. The Bork nomination is the most apparent example of the importance of myth-making in opposing a candidate. Immediately after Bork, Reagan nominated Douglas H. Ginsburg. Investigations revealed that Ginsburg used marijuana. Critics painted him as a hypocrite, especially considering these allegations were disclosed at the height of Reagan’s War against Drugs. Amidst all the controversy, Ginsburg withdrew his name.

The most recent example of myth-making is the nomination of Harriet Miers. This nominee is unique in that her harshest criticism came from her own party. While the Democrats questioned the appointment as an act of cronyism, right-wing Republicans attacked her as unqualified and intellectually incapable. William Kristol wrote in a Weekly Standard editorial, “I’m disappointed because I expected President Bush to nominate someone with a visible and distinguished track record…[Miers] has no constitutionalist credentials that I know of…I’m demoralized, surely this is a pick from weakness.” George Will less subtly editorialized in The Washington Post, “There is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court’s tasks.” The Miers nomination was met with opposition from both sides. They labeled her as an unqualified political crony. In order to avoid a contentious nomination battle, Miers withdrew her name from consideration.

The process of negative myth-making has appeared to avoid the Alito nomination so far. Elliot Mineberg of the People for the American Way believes, “[Alito’s] record that is not just conservative, but we would consider it out of the mainstream of conservatism.” This criticism has not picked up steam among more mainstream liberal media outlets. The New York Times ran a story entitled, “Alito is seen as a Methodical Jurist with a Clear Record.” The story’s mostly laudatory contents could hardly be considered an expose into his record. The nomination seems like it will avoid the pitfalls of negative myth-making that befell the Carswell, Bork, Ginsburg, and Miers nominations.

On the ideological side, Alito appears conservative but not as extremely conservative as Scalia and Thomas. The nomination will be opposed by many Democrats but it seems safe from a filibuster. Alito is not conservative enough to warrant a filibuster from the Democrats. If they opt to filibuster, I doubt that the rest of the country would support the move. President Bush has expertly chosen the perfect candidate in this respect. Alito is unabashedly conservative, yet his record reveals he is more judicially conservative than politically conservative. His views occupy the perfect place on the political spectrum. If he were any more conservative, a filibuster would have to occur which would halt the rest of Bush’s agenda. If Alito were any less conservative, the right-wing of his party would revolt in a similar fashion as the Miers nomination. In addition to Alito’s record, he has impeccable credentials that free him from any attack like the criticisms against Carswell, Bork, Ginsburg, and Miers. Complaints of mediocrity, reactionary opinions, drug use, or a lack of experience do not fit here. The confluence of Alito’s judicial philosophy and the lack of material for a personal attack by opponents bode well for the fate of the nomination.

Works Cited


Kristol, William. “Disappointed, Depressed, and Demoralized.” Weekly Standard, 3 October 2005.

Lewis, Neil A. and Scott Shane. “Alito is seen as a Methodical Jurist with a Clear Record.” The New York Times, 1 Nov 2005.

Reinart, Patty. “Battle Begins over Alito Record.” Houston Chronicle, 2 Nov 2005.

“Robert Bork.” http://en.wikipedia.org/wiki/Robert_Bork.

Will, George. “Can This Nomination Be Justified?” The Washington Post, 5 Nov 2005.

U.S. v. Rybar. Available at http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_rybar.txt

One thought on “Judicial Philosophy and Myth-Making in Judge Alito’s Confirmation

  1. They said the same thing about Thomas.I’m just curious. What is it you think will hpeapn to women, miorities and the environment when Alito is confirmed?And when was the law passed that says no conservatives allowed on the court?You have to win elections to make appointments. I don’t care if they’re liberal or conservative they must only be qualified for the job.

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