- The Washington Times - Thursday, January 5, 2006

Two things are clear about how Judge Samuel A. Alito Jr. has operated since his appointment to the federal appeals bench more than 15 years ago: His sense of humor is quiet and rich, and of the dozens of clerks brought under his wing, not all are conservatives.

In fact, a few voicing support of Judge Alito’s Supreme Court nomination are liberals.

“During his 15 years on the bench, it appears that he did not surround himself with conservative ideologues by any means,” says Susan Sullivan, a San Francisco lawyer who clerked for Judge Alito in 1990.

“I was not aware until this nomination process of the tremendous breadth of political affiliations of his law clerks,” said Ms. Sullivan, describing herself as a liberal Democrat who is a pro-choice, feminist supporter of gun control and gay marriage and an opponent of the death penalty.

John M. Smith, who clerked for Judge Alito in 2001 and describes himself as a Republican, said he was not asked about politics during the job interview.

“If that was typical for how he conducted interviews, then I suppose it’s not surprising that he would end up hiring clerks with a variety of political viewpoints,” Mr. Smith said. “A good number of them are Democrats.”

Judge Alito, 55, was nominated to the 3rd U.S. Circuit Court of Appeals by President George Bush. With degrees from Princeton and Yale, a career history as a Reagan-era Justice Department lawyer and later a U.S. attorney for the District of New Jersey, he was confirmed by unanimous consent in the Senate.

Senate hearings on President Bush’s choice to replace retiring Justice Sandra Day O’Connor begin Monday.

Like several of his former clerks, Mr. Smith, now a lawyer in Washington, recalls his experience working for Judge Alito as intense, but also as one where a good laugh or an inside joke might — in some cases literally — be around the corner at any turn.

Such was the case when a judge whose chambers are next door to Judge Alito’s in the old court house in Newark, N.J., engaged in some extensive redecorating a few years ago.

As a finishing touch, the judge had placed “what looked like a pair of fake stone lions in the hallway just outside the doorway to her chambers,” said Mr. Smith, declining to identify the judge who apparently then became the target of a bit of Judge Alito’s dry humor.

“Shortly after that in front of the entry way to Judge Alito’s chambers appeared two pink plastic lawn flamingos with their legs stuck into two box lids to keep them upright,” said Mr. Smith.

“It happened the year before I got there, but the pink flamingos were still there and on display when I started,” he said. “It just gives you an insight as to either his sense of humor or the type of humor he permitted, maybe even encouraged.”

Jokes aside, Judge Alito is known for the seriousness with which he approaches cases.

Ms. Sullivan worked for him when he wrote his now-famous dissent in the Planned Parenthood v. Casey case, in which he argued in favor of allowing Pennsylvania to require married women to notify their spouses before getting an abortion.

She said Judge Alito’s process for deciding cases was “the same irrespective of the subject matter.”

“Every case involved broad discussion of all of the relevant issues,” Ms. Sullivan said. “It was very much an open and thorough process.”

For that reason, she said she “did not feel uncomfortable with the process in any of the cases” that crossed Judge Alito’s desk during the year she worked for him.

“It is my belief based on having worked closely with him that he is not intent on advancing any political agenda. I really think that is evident from the range of results in his opinions,” Ms. Sullivan said. “There are certainly what may be described as ‘liberal’ outcomes in his decisions.”

For instance, she described as “pro-choice” an opinion Judge Alito wrote in 2000 in the case Planned Parenthood v. Farmer. In the case, Judge Alito cited Supreme Court precedent in his opinion to strike down a New Jersey law banning partial-birth abortions.

During his long tenure on the 3rd Circuit, Judge Alito has been involved in deciding more than 1,000 cases. Dozens of the opinions he has written have come in the form of dissents to majority rulings by other judges on the court.

Senators weighing Judge Alito’s nomination have ample material to draw from. Although the Casey dissent is most likely to dominate questions he will face, several other opinions have made news since his nomination was announced after previous nominee Harriet Miers withdrew amid criticism over her record.

Judge Alito has won broad support from conservatives, who cite his view of the Constitution, lengthy judicial experience and sometimes outwardly conservative legal writings, such as the dissent he wrote in Casey.

After meeting with him in November, Sen. Jim DeMint, South Carolina Republican, said Judge Alito “believes the Constitution is a textual document that has words that must be adhered to, rather than a living, breathing document that changes over time.”

But some of his rulings have drawn the ire of civil liberties and civil rights advocates. Last year, Judge Alito sided with police officers in the sensitive search-warrant case Doe v. Groody, drawing criticism from civil liberties advocates.

In a dissent to the majority’s ruling, Judge Alito favored allowing police to strip-search a 10-year-old girl, despite questions about their warrant. A police affidavit used to obtain the warrant sought permission to search all occupants of a suspected methamphetamine dealer’s house, but the wording of the actual warrant signed by a magistrate only authorized a search of the suspected dealer — the father of the 10-year-old.

A majority wrote that the search went beyond the scope of the warrant, violating the girl’s Fourth Amendment rights. Judge Alito’s dissent cited a strong dislike for the idea of intrusively searching a young girl, but it also referred to “a sad fact that drug dealers sometimes use children to carry out their business and avoid prosecution.”

The Congressional Black Caucus announced public opposition to Judge Alito last month. At the time, Delegate Eleanor Holmes Norton, chairman of the caucus’ judicial nominations task force, said Judge Alito has dissented, sometimes by himself, against plaintiffs in discrimination and affirmative action cases, “often against established precedent.”

In the racially sensitive 2001 death penalty case, Riley v. Taylor, Judge Alito dissented from a majority ruling to grant the defendant consideration for a new trial on grounds that prosecutors had willfully eliminated black jurors to achieve an all-white jury.

In what some criticized as an effort to trivialize a tradition of racism in the courts, Judge Alito’s dissent reasoned that the majority favored treating prospective jurors as if race was their only relevant characteristic.

Although those who know him are quick to cite Judge Alito’s passion for work, his friends also speak fondly of his personal life with his family and wife, Martha, and to joke of his other passions — perhaps most chiefly among them being the Philadelphia Phillies.

Carter Phillips, a Washington lawyer who played on a Justice Department softball team with Judge Alito while the two served together under President Reagan during the mid-1980s, keeps a baseball card of him on his desk.

Judge Alito, who has coached his son’s Little League team, was issued his own personalized card while attending a Phillies “fantasy camp” for adults in 1994.

“Sam is a huge baseball fan, and his wife sent him to the fantasy camp,” Mr. Phillips said. “I told her when she gave it to me, you know when he gets nominated, I’m going to pull this puppy out.”

Judge Alito’s former clerks also recall his personal openness. Having met his wife in the late 1970s when they worked in the New Jersey U.S. attorney’s office, Judge Alito apparently did not look disapprovingly if his clerks formed similarly close relationships.

Ms. Sullivan, who later married another clerk with whom she had served under Judge Alito in 1990, said that when he had learned of the marriage, the judge “jokingly described his chambers as the most romantic.”

Mr. Smith whose wife also clerked for Judge Alito in 2001 — the two were hired as a husband-and-wife team — recalled an almost family environment to the office, one in which Judge Alito occasionally even shared self-deprecating personal stories with his clerks.

One such story was about Christmas. As it goes, when Judge Alito was a boy he bought the same modest gift for his father and mother every year for Christmas, a can of shaving cream and a bottle of perfume, respectively.

“One Christmastime it somehow got away from him, he realized time was almost up and he hadn’t gotten the gifts,” Mr. Smith said.

The result, he said, was that the young Judge Alito had to sneak out his bedroom window and run down to a local store to buy the gifts at the last minute.

“The reason we remember it is because it shows what a thoughtful boy he was and how much he really cared about his parents.”

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