Edited by Thespis
The sovereign tertiary structure of the United States federal government is an exceptional configuration, and has become a model for democracies across the globe. These three distinct and independent branches of government provide the basis of an elegant and streamlined sonata in which a discordant cacophony of voices and cultures function together as one society forming one nation under God: the United States of America. As one of the co-equal branches of the federal government, the Supreme Court has likely evolved beyond the original intent of the founding fathers when compared with the executive and legislative branches. The court has greatly expanded its role in the course of our nation’s history, which has brought rise to many controversial debates between politically operated coalitions. In his book Men In Black, author and Supreme Court expert Mark Levin details the mounting role of the U. S. Supreme Court since the constitution was ratified in 1789. Mr. Levin brings the entire scope of the situation into focus in chapter one of his New York Times best-seller: “America’s founding fathers had a clear and profound vision for what they wanted our federal government to be. The overarching purpose was to prevent the concentration of power in a relative handful of institutions and individuals.” Mr. Levin goes on to argue that today’s Supreme Court has enacted a “judicial reign of tyranny” upon the American people. Controversy surrounding the role and function of the Supreme Court came into sharp focus when the court ruled on the most infamous case of modern times: Roe versus Wade in 1973. This controversial decision has impacted every Presidential election since that time. This national political debate has been infused with white-hot rhetoric from conservative and liberal groups at all levels of government, but the Presidential election of 1980 brought the role of a President in Supreme Court appointments into the magnified debate of the twenty-first century. Since that time, a spotlight has shown on every Presidential candidate as his judicial philosophy and Supreme Court appointments became essential to campaign strategies and tactics. (Coulter, p.201) In the 2000 and 2004 campaigns, President Bush brought a new laser-like focus to the issue by repeatedly stating that he would name judges in the tradition of Antonin Scalia and Clarence Thomas. With his most recent appointment of Judge Samuel Alito to fill the seat of retiring Justice Sandra Day O’Connor, President George W. Bush has renewed the national debate over judicial philosophies and conservative jurisprudence. Further, in an unmitigated act of disingenuous remarks and partial reporting, the mainstream media immediately began to promote the idea that Judge Alito was the judicial replica of Justice Scalia. Why is this nomination such a hot issue? The answer, simply stated, is that after the announcement of nomination the mainstream media immediately began to promote the idea that Judge Alito was the judicial replica of Justice Scalia by calling Judge Alito by the nickname “Scalito.” A clever ploy and satirical pun, the nickname took flight and the mainstream media infused the plotline with an easily understood yet grossly unsupported statement. Although there are similarities between Justice Scalia and Judge Alito, the unfair depiction of Alito as “Scalito” does not withstand the test of comparative judicial opinion, and the repetitive use of the name Scalito represents nothing more than the trite thinking of the media elite.
The one publicly known thing about Samuel Alito, his crass nickname “Scalito,” is grounded in a superficial comparison of the two legal experts, however a further examination of the data surrounding this simplistic comparison demonstrates the differences between the two men. Both Scalia and Alito are Italian American men who are conservative. They are both known for writing sound and well thought out opposing opinions in courts that have been dominated by liberals. Both of these men were appointed by Republican Presidents to their original judicial posts, Scalia by President Reagan to the District of Columbia U.S. Court of Appeals, and Alito by President George Herbert Walker Bush to the third federal circuit court of appeals in 1990. Alito received his appointment after being a fixture in the Reagan administration during the 1980’s. While all of these comparisons are self evident and factual, only the dullest of minds engaging in the shallowest of judgments can create additional similarities between the two men. Anything beyond a cursory examination demonstrates fissures in the supposed union of these two judicial scholars.
In 2002 Justice Scalia wrote a stinging rebuke of one of Alito’s decisions, and eventually had Alito’s decision overturned at the Supreme Court level, one of the many differences between the two men. The case surrounded a woman trying to secure her social security disability benefits when her job as an elevator operator was eliminated. The plaintiff, Pauline Thomas, was truly disabled. Alito argued the case fervently with his fellow judges and convinced them to overturn the lower court’s ruling denying Ms. Thomas the benefits. The Supreme Court however, remained unmoved by Judge Alito’s interpretation. In fact, Antonin Scalia, who was a member of the Supreme Court overseeing the trial, stated that Judge Alito had disregarded the fundamental rules for interpreting the law and called the thinking, “absurd.” Ms. Huang, a former clerk of Samuel Alito’s, states the following of Judge Alito, and his views of this case. “I think he really looks at the facts of the case; he'd be very realistic. He's not going to be carried away by some legal doctrine or some arcane grammatical rule.” This legal disagreement between the two men serves as an illustration for the career differences of Sam Alito and Justice Scalia, giving Alito a distinctive judicial presence of his own: free of the nickname “Scalito.”
Further evidence of the differences between Scalia and Alito exists in the judicial opinions of Judge Alito. Alito’s decisions reflect his affinity for a particular brand of conservatism often called libertarianism. A mainstream libertarian will always focus on the reality that the intention of the United States Constitution is to limit the power of the federal government. According to Ilya Soman writing in The American Spectator, it is in this arena that Alito’s divergence from Scalia is the most obvious. In a striking departure from Justice Scalia, Alito has repeatedly voted for the free exercise rights of minority religious groups even if the laws in question do not intentionally or directly harm the religious group. Soman provides an instructive summary of the following case.
"In Fraternal Order of Police v. City of Newark (1999), he joined an opinion holding that Muslim police officers had a right to grow beards (as required by their religion) so long as the city allowed a secular health-related exemption from its no-beard policy. This result is in tension with Scalia's position in the important case of Employment Division v. Smith, where he wrote a decision holding that the Constitution in most cases does not protect religious groups against the effects of "neutral" laws. Given that the FOP case involved Muslims, it is hard to argue that Alito was just voting for the rights of a group whose religious values he shares. In another case, Blackhawk v. Pennsylvania, Alito authored an opinion establishing a free exercise exemption for a Native American religious group. While these Alito decisions do not directly contradict Smith, they certainly provide much stronger protections for minority religious groups than Scalia would be likely to favor. "
Clearly, Alito is a self-regulating jurist of noteworthy disparity with Justice Scalia.
The issue of federalism provides another point of distinction between Scalia and Alito. In a 1996 case involving the possession of machine guns across state lines, Alito dissented from a majority opinion sustaining the federal interference into this matter. Alito did not make his dissent based upon a personal belief regarding the rights of gun owners. In fact, Judge Alito goes to some length in the dissent to speak favorably of state’s being permitted to regulate machine gun ownership. Alito’s tapered reasoning involved the rejection of any federal law or by default, judicial fiat, as a method of regulating gun ownership as intrastate commerce. This case went one step beyond Judge Alito’s libertarian judicial philosophy and stands in contradistinction to Justice Scalia’s ruling that the breadth of the commerce clause allows for the interstate restrictions and a federal ban on the possession of marijuana. In the case of Gonzales vs. Raich, Scalia gives a much broader definition to the interpretation of commerce clause and took the unusual step for any conservative jurist of overriding state laws making marijuana legal. Alito’s other notable cases involve permitting free speech from being restricted simply because groups of individuals may classify the protected speech as harassment of one group. As with any practicing libertarian, Alito sides with the limited original intent of the language in the constitution and focuses on the liberty of the individual.
I am, and have always been a conservative and an adherent to the same philosophical views that I believe are central to this administration. It is obviously very difficult to summarize a set of political views in a sentence, but in capsule form, I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong national defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values. In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsibleto the electorate. When I first became interested in government and politics during the 1960’s, the greatest influenceson my views were the writings of William F. Buckley, Jr., in The National Review, and Barry Goldwater’s 1964 campaign. In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,the Establishment Clause, and reapportionment.
This statement on his job application simply states Alito’s judicial philosophy. Those opposing Alito are chastising his philosophy because it may not coincide with their views of the subject. In many instances, comparisons of Alito and Scalia cannot be used as a diminutive device that would bring educated people to oppose Alito; which is just another item that proves Alito is an individual and not a judicial replica of Justice Antonin Scalia.
There is another memo exploited by the press which deals with a 1985 abortion case. Exaggerated claims and raucous rhetoric are emanating forth from the opposition relative to this memo because it addresses the liberal litmus test, the solitary issue for which they and their extremist supporters focus on for Supreme Court appointments: legalized abortion. Interestingly, this memo was not the result of a Bush administration release. The memo came from the National archives were the Clinton Administration had dumped it some years ago. Brian Maguire of the New York Sun speculates that the documents were released by the Clinton administration as a preemptive strike against any potential Republican appointee for the Supreme Court. The memo reveals that as a lawyer in the Reagan justice department, Alito argued for chipping away at abortion rights as a strategy for reforming this flawed judicial precedent. Alito’s argument was consistent with the stated policy of Ronald Reagan and the Reagan justice department. The defective 1973 decision which has been so widely debated since that time, made all policy choices about abortion matters of constitutional law. The court removed the issue from the electoral process. All conservatives have believed before and after Roe that the issue should be settled through the political process since obviously the constitution does not explicitly address abortion, or the contrived right to privacy upon which the court based the original decision. While the liberals and the mainstream media dwell upon the necessity of upholding the considerably blemished and poorly reasoned decision of Roe versus Wade, there are other great issues of significance before the court today, and there will doubtless be immense issues to be decided by the court in the future. Even Paul Begala the notorious prince of the strident liberals, said it is not advisable for the democrats in the senate to “act as if the Supreme Court is the abortion court.” The normally frantic Begala insisted that Alito has withheld critical information from the committee, while saying that Senator Kennedy is “smarter than the average bear” and that Senator Kennedy and others will succeed in discrediting Sam Alito by using a range of issues to frame his lack of suitability for the court.
Only time will tell what comes of this scorching issue. Will Alito get the job? Regardless of the strategy employed by the left, Judge Alito is still very likely to be confirmed. The Republican majority in the senate is counting on at least fifty of their fifty-five votes. The liberals in the senate are likely to increase the volume and intensity of their speechifying in the weeks ahead. Having failed in their harsh criticism of President Bush on the Iraq war, these shrill opponents of Judge Alito’s nomination will stop at nothing to smear Judge Alito and deny him the opportunity to serve as a member of the Untied States Supreme Court as a singular justice, and not as a so-called replica of Antonin Scalia.