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Slate's Jurisprudence: Bush Tries Again with 'Scalito'


From NPR West, this is DAY TO DAY. Alex Chadwick is on assignment. I'm Noah Adams.

Coming up, how news of a White House aide's indictment is playing in a Wisconsin pumpkin patch.

But first, this morning President Bush named Judge Samuel Alito of the 3rd Circuit Court of Appeals to be his choice for the next associate justice on the Supreme Court.

President GEORGE W. BUSH: Judge Alito has served with distinction on that court for 15 years, and now has more prior judicial experience than any Supreme Court nominee in more than 70 years.

ADAMS: And that experience on the bench is, of course, a sharp and intentional contrast to Harriet Miers, Mr. Bush's previous nominee, who withdrew her name late last week. Joining us for her analysis of Samuel Alito is Dahlia Lithwick, who covers legal affairs for the online magazine Slate and for DAY TO DAY.

Dahlia, welcome. Remind us of where Judge Alito is coming from.


He's coming from the 3rd Circuit Court of Appeals, which is based in Philadelphia, and his nickname is Scalito. He is often likened to Antonin Scalia or the miniversion of Antonin Scalia--so if you want to call him by his nickname and sound like an insider.

ADAMS: Yeah, I wonder how both men feel about that.

LITHWICK: Probably not ever nice to be known as the little version of anyone.

ADAMS: Right. Well, in what ways are they similar?

LITHWICK: Well, the two big ways are, one, predictability--that is to say, Alito has a very, very well, very evolved and worked out jurisprudential theory. His philosophy is like Scalia's, so you sort of are not really surprised by his votes in cases. That stands in sharp contrast to Harriet Miers. But more profoundly that predictability tends to be in a very, very conservative direction, so you get cases in which he votes to strike down federal laws banning the possession of machine guns, votes from him expanding police search powers to include even such things as strip searches, and probably the most controversial decision we're going to hear a lot about is a vote in 1991 to uphold a Pennsylvania law that would have very, very severely restricted women's ability to get abortions, including a provision that would have required that they notify their spouse. That was later struck down by the US Supreme Court in its Casey decision, but Alito would have taken a much stronger position than the Supreme Court ultimately took against abortion.

ADAMS: The 1991 case is indeed on the records. Staying with abortion here, are there other examples of situations where Judge Alito would differ from the court's position on Roe v. Wade, let's say?

LITHWICK: Well, the crucial thing in that 1991 case, Noah, was that there was a provision that said married women need to go to their husbands for their consent, and Alito wrote a rather shocking opinion where he said there's all sorts of reasons that the state could say that that's true and that the sort of alleged problem--I think he used the word `perceived' problems--that women can't go to their husbands would usually be resolved by discussing it. I think that shows a sort of shocking lack of understanding about a lot of the very, very difficult and fraught situations in which women can't go to their husbands and obtain their consent, and I think that is a real red flag for people who care a lot about abortion rights because it suggests to him that he'd be willing to go along with the state rationale even when that rationale sort of flies in the face of common sense.

ADAMS: And in a larger view, President Bush has said that Judge Alito is the opposite of a judicial activist. He's not really going to be about making law. Here's what the president said.

Pres. BUSH: He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.

ADAMS: And, Dahlia, do you think that's an accurate characterization of the record?

LITHWICK: Well, I think this sort of proves the lie, Noah, that judicial activism only happens from the left. If you look at Alito's record, for instance, he said that the federal government doesn't have the right to regulate guns. And as I mentioned, he would have struck down a machine gun ban. He has tried to limit federal law, the Family Medical Leave Act. So I think it's really important to understand that again, a lot of the, quote, "conservatives" on the Supreme Court have been at the forefront of striking down acts of Congress that they say are unconstitutional. And frankly, if that's not activism, I don't know what is.

ADAMS: Opinion and analysis from Dahlia Lithwick, who covers the courts for the online magazine Slate. Thank you, Dahlia.

LITHWICK: My pleasure, Noah. Transcript provided by NPR, Copyright NPR.

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