Samuel Alito Next Supreme Court Nominee?

Erick-Woods Ericson reports:

Multiple sources are telling RedState that Samuel A. Alito, Jr. of the Third Circuit Court of Appeals will be named by the President at the next associate justice of the United States Supreme Court as early as Monday. “The situation is still in flux,” says one source, “but not very much.” Says another, “The White House Counsel’s Office is not doing too good at keeping this a secret.”

Still another source says, “Luttig and Alito were the fall backs to Miers. They have both been vetted. Alito seems more palatable. There is no need to drag this out, he’s been vetted a million times.”

And yet another source tells me that he is convinced Alito is the nominee barring some last minute unforeseen issue. All signs are pointing to Judge Alito right now. Things could change, but as the weekend draws closer it seems more and more likely that Judge Alito will be the nominee and conservatives will have a fight on their hands in the Senate — a very winnable fight.

We shall see, of course. It is somewhat amusing that the White House Counsel’s Office, headed by White House Counsel Harriet Miers after all, is leaking news of the replacement for Harriet Miers.

So, who is this Alito guy?

The Supreme Court Shortlist (Slate, July 1)

Samuel Alito

Samuel Alito

Age: 55
Graduated from: Yale Law School.
He clerked for: Judge Leonard Garth.
He used to be: deputy assistant attorney general under Reagan, U.S. Attorney for the District of New Jersey.
He’s now: a judge on the U.S. Court of Appeals for the 3rd Circuit (appointed 1990).

His confirmation battle: Alito has the Scalia-esque nickname “Little Nino” and the Italian background to match it. As the author of a widely noted dissent urging his court to uphold restrictions on abortion that the Supreme Court then struck down, in a decision that reaffirmed Roe v. Wade, Alito could be especially filibuster-prone. Like Scalia, he frequently makes his mark in dissent.

Separation of Church and State
For a unanimous panel, upheld a lower-court order requiring a school district to allow a Bible-study group to set up an information table at an elementary-school back-to-school night. Reasoned that by preventing the group from displaying its literature, the district was discriminating on the basis of viewpoint. (Child Evangelism Fellowship of N.J., Inc. v. Stafford Township School District, 2004)

For a unanimous panel, denied standing to a group seeking to take down a municipal holiday display that included a menorah and a crèche. Alito said that the group couldn’t challenge the display as taxpayers because the items were donated rather than bought by the town. (ACLU-NJ v. Township of Wall, 2001)

Dissented from a ruling by the 3rd Circuit as a whole that an elementary school did not violate the First Amendment rights of a kindergartener by taking down (and then putting back up) a Thanksgiving poster he’d made that said the thing he was most thankful for was Jesus. The majority decided to throw out the case on a technicality; Alito protested that the child’s claim should go forward. (C.H. v. Oliva, 2000)

Criminal Law
Allowed a federal probation office in Delaware to condition the release of a man who had pleaded guilty to receiving child pornography on his willingness to submit to random polygraph tests about whether he’d had impermissible contact with children. (United States v. Warren, 2003)

Dissented from a refusal to grant police officers immunity from a civil suit brought by a mother and her 10-year-old daughter who’d each been strip-searched because they lived in the home of a suspected drug dealer. Alito felt the police had behaved reasonably because the warrant led them to conclude that there was probable cause to search everyone in the house for drugs. (Doe v. Groody, 2004)

Habeas Corpus
Granted the habeas claim of an African-American defendant who sought to introduce evidence that a juror made a racist remark after the jury reached its verdict. (Williams v. Price, 2003)

Dissented from a decision holding that Pennsylvania could not require women to inform their husbands before getting abortions. Alito argued that because the law only required the husbands to have notice and did not give them a veto over their wives’ decisions, it did not pose an “undue burden” for women. This approach was rejected by the Supreme Court. (Planned Parenthood v. Casey, 1991)

Agreed that an immigration judge was within his discretion to find not credible an application for asylum based on China’s forced-abortion policy. (Xue-Jie Chen v. Ashcroft, 2004)

Possible Nominees to the Supreme Court (WaPo, July 1)

Samuel A. Alito, Jr., 55, is a judge on the U.S. Circuit Court of Appeals for the 3rd Circuit.

Nominated by President George H. W. Bush to the court in 1990, Alito was educated at Princeton University and Yale Law School. His work experience includes stints as assistant to the Solicitor General and deputy assistant to the Attorney General during the Reagan Administration, and as U.S. Attorney for the District of New Jersey.

Alito has voted to uphold regulations on abortion, notably as the lone dissenter in a 1991 case in which the 3rd Circuit struck down a Pennsylvania law’s requirement that women tell their husbands before having an abortion. The three-judge panel preserved most elements of the abortion control law, including a 24-hour waiting period and a requirement that minors notify their parents. But Alito argued in his dissent that the spousal notification provision did not impose an “undue burden” and also should have been upheld.

In other rulings, Alito wrote for the majority in 1997 in finding that Jersey City officials did not violate the Constitution with a holiday display that included a creche, a menorah and secular symbols of the Christmas season. In 1999, he and his colleagues found that a Newark policy that allowed medical, but not religious, exemptions to a ban on police officers having beards violated the First Amendment.


Samuel A. Alito Jr. (born April 1, 1950) is a judge on the United States Court of Appeals for the Third Circuit. His ideological likeness to United States Supreme Court Associate Justice Antonin Scalia has earned him the nickname “Scalito.”

Alito was born in Trenton, New Jersey. He graduated from Princeton University with an A.B. in 1972, and went to Yale Law School, where he earned a J.D. in 1975. From 1981 to 1985 he was Assistant to the United States Solicitor General, and was Deputy assistant to the U.S. attorney general from 1985 to 1987. After a brief stint as U.S. Attorney for the district of New Jersey, he was nominated by George H. W. Bush in 1990 to the United States Court of Appeals for the Third Circuit. His chambers are in Newark, New Jersey.

With the announced retirement of Supreme Court Justice Sandra Day O’Connor in 2005, Alito was widely reported as being narrowly passed-over as her replacement by the Bush Administration, having been edged-out by close personal Bush aide and confidant, Harriet Miers. With Mier’s nomination retracted on 27 October 2005, speculation again surfaced of Alito’s possible nomination to the post.

Update: Baseball Crank argues, “Bush doesn’t needs to pick a fight. But he does need to pick a nominee who is worth fighting for.” Amen to that.

Previous Alito mentions on OTB:

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. My own speculation, and admittedly, it is nothing more than that, is that Bush’s first choice was always a man, but because it’s O’Connor’s seat, he had to go through the pretense of nominating an unconfirmable woman first. He might not have known how much opposition the the nomination would spark, but knew all along that she would be stopped by the executive privlege thing. Just an idle thought.

  2. John Robb says:

    What is Judge Alito’s religion?

    J Robb

  3. T Rex says:

    Why is it that they never speak of ethnic and religious backrounds? I find it necessary to know. Does anyone know?

  4. Rosie says:

    Geez, J. Robb. With a name like Alito, what do you think his religion is??? Roman Catholic, of course.

    I’ll bet Roe v Wade will be struck down as soon as his butt hits his chair in the Supreme Court. Any takers???

  5. Cochese says:

    No need to stress. The fetus-worshippers can rest assured Shrub picked the right man…

    Copulate Don’t Populate.

  6. Toby says:

    My God… to think of a world without abortions, what an absurd idea. I mean how will we ever run from our mistakes now? WE MIGHT ACTUALLY HAVE TO FACE OUR PROBLEMS AFTER ALL!! “poor us”

  7. Fred says:

    With a name like Rosie, you must be Muslim.

  8. Lee says:

    What is Alito’s views on equal protection under the law?

    where can I find rulings?

  9. Jonathan says:

    We could only be so lucky as to have another Supreme Court Justice in the “mold” of Scalia. If you actually READ his opinions, it seems he is the only one who actually understands the constitution and its INTENDED interpretation.