- The Washington Times - Tuesday, November 22, 2005


Assuming Judge Samuel A. Alito Jr. wins Senate confirmation, he will join seven colleagues on the Supreme Court who have already either concurred with his opinions or scoffed at them.

While on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, Judge Alito has written hundreds of opinions or dissents in his 15 years on the federal bench. A few of those cases have gained a spot on the selective Supreme Court docket.

Judge Alito has lost some close cases in the high court. Two years ago, he was soundly rejected in the case of a former elevator operator who was seeking Social Security disability payments.

His cases do provide some insight on what the justices thought about his judicial work. If confirmed, Judge Alito would replace Justice Sandra Day O’Connor, who is retiring.

In at least two cases, the Supreme Court justices mentioned Judge Alito by name and his writings in their citations.

In 2004, Judge Alito wrote the majority opinion as the 3rd Circuit decided to let stand a death sentence for an inmate who argued that his attorney had done sloppy work during the trial’s penalty phase.

Judge Alito rejected Ronald Rompilla’s argument that his trial counsel had, in the judge’s words, failed to “take all the steps that might have been pursued by the most resourceful defense attorneys with bountiful investigative support.”

“But while we may hope for the day when every criminal defendant receives that level of representation, that is more than the Sixth Amendment demands,” Judge Alito wrote.

The Supreme Court, in a 5-4 vote, overturned the death sentence and ordered a new penalty trial. Justice David H. Souter sided with the defendant and was joined by Justice O’Connor, the swing vote in the case.

In dissent, Justice Anthony M. Kennedy agreed with Judge Alito and the 3rd Circuit that it was right to uphold the state ruling. “We have reminded federal courts often of the need to show the requisite level of deference to state court judgments,” Justice Kennedy wrote.

In 2003, the 3rd Circuit backed Pauline Thomas, a disabled former elevator operator who had applied for Social Security disability payments after her employer installed new elevators and cut her job. The government had denied her claim for benefits.

“[Judge Alito] wrote, and I was with him on it,” said Judge Edward R. Becker, a Reagan appointee who served with Judge Alito on the 3rd Circuit, “Sam was for the little guy.”

In his 10-page opinion, Justice Antonin Scalia disparaged the 3rd Circuit’s logic in the case and wrote, “To generalize is to be imprecise. Virtually every legal (or other) rule has imperfect applications in particular circumstances.”

Evaluating Judge Alito’s opinions and dissents before the Supreme Court is far from an exact science. The high court considers only about 80 cases per term, and the 3rd Circuit, which has jurisdiction for New Jersey, Pennsylvania, Delaware and the Virgin Islands, gets only a few. In 2003, four cases from the 3rd Circuit were considered.

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