Scalito?

As proud as I am as an Italian American, it is much more important to look at Judge Alito's decisions as a federal judge than to disparage him as an unyielding, acerbic Scalito!

Let's look at the Casey decision. Judge Alito favored that regulations on abortion rights as not being an undue burden. While he supported this decision that required a woman to notify her husband, he went to great lengths to support the "State's Rights" legislative question here, and he showed understanding to the difficulties that women will face in these circumstances.

Quoting from Wash. Post 11/1/05,

They (the other judges involved in the Casey decision) noted that most women seeking abortions were unmarried, and thus unaffected by the provision, and that among married women, most chose to involve their husbands in the abortion decision. But for those married women who feared the consequences of telling their husbands, the two judges said, the burden was indeed severe and failed to meet the test. Judge Alito disagreed. The number of women who would be adversely affected by the provision, admittedly small, was unknown, he said, and the evidence of likely impact was insufficient to provide for striking down a new law on its face, before its impact could be tested and demonstrated. "I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women," he wrote.
Judge Alito's dissenting opinion went on to note that "needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of this provision is a matter of grave concern." But the Pennsylvania legislature took that concern into account, he said, in writing into the law an exception for a woman who "has reason to believe that notification is likely to result in the infliction of bodily injury upon her." Further, he said, the law would be "difficult to enforce and easy to evade," because it required no proof beyond a woman's word that she had notified her husband. The provision survived his understanding of the undue burden test, Judge Alito said, adding that "the Pennsylvania legislature presumably decided that the law on balance would be beneficial" and "we have no authority to overrule that legislative judgment, even if we deem it 'unwise' or worse."

What bothers me more about the Casey Decision is that the law requires a 1) 24 hr waiting period, and 2) counseling from both sides of the issue. I personally believe that both regulations should be a women's perogative before choosing to abort, but mandating it by law is a breach of privacy.

Additionally, Judge Alito is a strict constructionist. He upheld the 11th Amendment is protecting States from being sued by former employees with regard to the Family Leave Act. Also, he supported the purchasing of machine guns within the Commonwealth of Pennsylvania due to the fact that the case was argued as an "Inter State Commerce" issue for which Judge Alito did not believe the issue had any standing.

Let us review some of his legal opinions. These summations were compiled by NPR.

On Abortion:
Planned Parenthood v. Casey, 1991
Alito had the lone dissent in the 1991 case of Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.
The U.S. Supreme Court in 1992, in a 6-3 ruling, struck down the spousal notification requirement, but Chief Justice William Rehnquist quoted from Alito's opinion in his dissent.
Opinion Excerpt: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion."

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Planned Parenthood v. Farmer, 2000
In 2000, Alito joined the majority that found a New Jersey law banning late-term abortions unconstitutional. In his concurring opinion, Alito said the Supreme Court required such a ban to include an exception if the mother's health was endangered.
Opinion Excerpt: "I do not join Judge Barry's opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court's decision in Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.... The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother."

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On Religion:
Fraternal Order of Police v. City of Newark, 1999
The 3rd Circuit ruled 3-0 that Muslim police officers in the city can keep their beards. Previously, the police had made exemptions in its facial hair policy for medical reasons (a skin condition known as pseudo folliculitis barbae) but not for religious reasons.
Opinion Excerpt: "We cannot accept the department's position that its differential treatment of medical exemptions and religious exemptions is premised on a good-faith belief that the former may be required by law while the latter are not."

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ACLU v. Schundler, 1999
In 1999, Alito was part of a majority ruling of the 3rd U.S. Circuit Court that freed Jersey City, N.J., from an earlier court ruling that had blocked the city from erecting a holiday display at City Hall. The court held that the display did not violate the establishment clause of the First Amendment -- the clause interpreted as a call for the separation of church and state -- because the city had modified its original display of a creche and a menorah to include a Frosty the Snowman, Santa Claus, red sleigh and a banner hailing the importance of diversity.
Much of the argument in this case came down to the relative prominence of the secular symbols in the display as compared to the religious symbols.
Opinion Excerpt: "With the possible exception of this factor, however, we see no reasonable basis for distinguishing the modified Jersey City display from the display upheld in Lynch. The plaintiffs and our dissenting colleague suggest that the cases can be distinguished on the ground that in the modified Jersey City display 'Santa Claus and Frosty the Snowman clearly do not constitute separate focal points or centers of attention coequal with the Menorah and the Nativity Scene,' Appellees' Br. at 14, but we see no basis for this distinction. Appendices A and B to this opinion, which depict the modified displays on both sides of City Hall in Jersey City, speak for themselves. In the modified display on the right, the sleigh is just as much a focal point as the figures in the nativity scene. And in the modified display on the left, the tree is just as much a focal point as the menorah."

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On Freedom of Speech:
The Pitt News v. the Attorney General of Pennsylvania, 2004
In July 2004, the 3rd Circuit Court ruled that a Pennsylvania law prohibiting student newspapers from running ads for alcohol was unconstitutional. At issue was Act 199, an amendment to the Pennsylvania Liquor Code passed in 1996 that denied student newspapers advertising revenue from alcoholic beverages.
Alito said the law violated the First Amendment rights of the student newspaper, The Pitt News, from the University of Pittsburgh.
Opinion Excerpt: "If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment."

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On Sex Discrimination:
Sheridan v. Dupont, 1996
In 1996, Alito filed a partial dissent in the sex discrimination case of Sheridan v. Dupont. Barbara Sheridan, a former employee of the Hotel du Pont, filed an action under the Civil Rights Act of 1964 claiming that she had not been promoted because of her gender. She also claimed in her filing that the hotel had retaliated against her when she complained about sex discrimination.
Alito's primary disagreement with the majority in this case was over the issue of summary judgment. This is the point in a case, pre-trial, when the defense moves to have the case dismissed by a judge for lack of evidence. The majority held that the plaintiff's testimony in such cases was always enough to overcome the summary judgment motion and move the case to trial. Alito disagreed, saying that some employment discrimination cases required a higher standard of proof from the person claiming discrimination.
Opinion Excerpt: "If the majority had merely said that, under the circumstances described above, a defense motion for summary judgment or judgment as a matter of law must generally be denied, I would agree. When a plaintiff makes out a prima facie case and there is sufficient evidence in the record to permit a rational trier of fact to find that the employer's explanation is untrue, a defense motion for summary judgment or judgment as a matter of law should usually be denied. But not always, as the majority contends.

In my view, the correct test is the following: a defense motion for summary judgment or judgment as a matter of law should be granted when the evidence in the record could not persuade a rational trier of fact that intentional discrimination on the ground alleged by the plaintiff was a determinative cause of the challenged employment action.

This does not mean that a plaintiff, in order to reach the trier of fact, must always prove 'pretext plus,' i.e., that the plaintiff must always produce some evidence in addition to what is necessary to establish a prima facie case and to show that the employer's explanation is pretextual. On the contrary, in most cases, such additional proof is not needed. But I disagree with the majority that proof of the elements of the prima facie case and proof of pretext are always enough."

The Associated Press contributed to this report.

He is bright, precedent driven, procedure driven, firm but not rude in a "Scalito" way, and he has a sense of fairness in terms of religion. I am concerned about his environmental stances due to the fact that he appears to be a "State's Rights" devotee. In my opinion, only Federal Law can protect the environment.

I look forward to strong political debate and wrangling of his past decisions in the Senate Judiciary Committee. Difficult questioning will afford all of us more information to determine whether this is Alito or Scalito?!

P.S. I am especially encouraged by, tongue in cheek, the Pitt News decision. I am a Pitt Alum. An additional drawback to Judge Alito is that he is a Philadelphia Phillies Fan...tongue in cheek.