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  • Ashley Baker

Judge Alito’s Record: Restraint, Commitment to Precedent, Faithful Application of the Law

Executive Summary

With each Republican nominee to the Supreme Court – from Sandra Day O’Connor to John Roberts – attacks by liberal interest groups such as People for the American Way (PFAW) have become increasingly histrionic. Now the Left has trained its fire on Judge Samuel A. Alito, Jr. Despite the attacks, it would be difficult to imagine a candidate better suited to the High Court than Judge Alito. The son of an Italian immigrant and of two public-school teachers, Alito boasts an impeccable academic pedigree and has dedicated his career to public service, including fifteen years as a judge on the U.S. Court of Appeals for the Third Circuit. Notably, Judge Alito has more prior judicial experience than any Supreme Court nominee in the past 70 years.

As this report demonstrates, Judge Alito’s record reveals him to be a thoughtful, restrained, and impartial jurist who avoids judicial policymaking. He decides the cases that come before him on the basis of the facts and the law – including precedent – without regard to his personal preferences on policy or outcome. While these characteristics are evident throughout Judge Alito’s opinions, this report focuses on those issue areas where liberal interest groups have chosen to aim their attack, specifically:

Privacy: Judge Alito’s record shows that he does not approach cases implicating privacy with a predetermined viewpoint. Instead, he decides such cases based on his understanding of what the law requires. On the issue of abortion rights, Alito voted on the pro-choice side in three of the four abortion cases in which he participated, and on the pro-life side in the fourth case. In other words, Judge Alito is neither a pro-life nor pro-choice judge, but a pro-law judge. And in a much-ballyhooed case involving the search of a 10-year old girl, the Left’s only real complaint is that Alito declined to substitute his judgment for that of the police concerning the necessity of determining whether a drug dealer had hidden drugs on his daughter.

Constitutional Limits on Federal Power: In federalism cases, Judge Alito’s fidelity to Supreme Court precedent and the Constitution’s limits on federal power are being outrageously miscast as evidence that he opposes the federal ban on machine guns and the Family and Medical Leave Act.

Race and Sex Discrimination: Despite the Left’s description of Alito’s rulings on race and sex discrimination as “especially harsh,” an examination of his record evinces a scholarly command of this complex area of the law, as well as an even-handed treatment of both plaintiffs and defendants.

Age and Disability Discrimination: Judge Alito is similarly evenhanded in his consideration of age and disability discrimination claims. While that is not enough to satisfy critics of his record – who seem to believe that the disabled should win every case they bring – the truth is that Alito has decided many such cases in favor of disabled plaintiffs.

Other Labor and Employment Cases: Liberal special interest groups complain that Judge Alito’s record in cases concerning “worker protection” is “mixed.” What that really tells us is that Alito is not an outcome-oriented judge. In other words, he decides cases based on the facts and the law, not on what outcome he desires.

Religious Liberty: Judge Alito has struck down a variety of regulations that imposed unique burdens or outright restrictions on those wishing to express their religious views. Recognizing that the First Amendment’s guarantee of religious liberty is not just for Christians, Alito has shown special sensitivity to the rights of religious minorities, such as Muslims and Native Americans.

Freedom of Speech: The “PC police” on the far Left sound the alarm because Judge Alito’s opinions suggest “that student speech about morality and ‘sin’ should not be restricted even when it may offend others.” But Judge Alito recognizes that protecting free speech even when others may disagree or be offended is precisely what the First Amendment is all about.

Prisoner Litigation: In a number of cases, Judge Alito has safeguarded the rights of prisoners – particularly inmates who claim that their convictions were tainted by racial discrimination. At the same time, Alito’s record demonstrates that he grants appropriate deference to the judgment of officials charged with determining how best to run a prison.

Immigration Laws: Because they reflect his usual commitment to applying the law impartially, Judge Alito’s opinions in this area fail to satisfy critics on the left who seem to think that every request for asylum should be granted. Never mind that Alito's application of the law has sometimes resulted in a broad view of eligibility for asylum and, in one case (Fatin v. INS), resulted in a legal rule that ensures that women who have suffered persecution abroad because of their gender or feminist beliefs will find a safe haven in the United States.

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