How Alito Looks Under the Lens

(3 of 5)

Because they are both Catholic, Italian-American conservative federal judges who hail from Trenton, N.J., Alito and Supreme Court Justice Antonin Scalia have often been viewed as brothers in arms--so much so that Alito earned the nickname Scalito among many court watchers. But the comparison is misleading. Throughout Alito's career--from his time as an Assistant Solicitor General and Deputy Assistant Attorney General in the Reagan Administration to his three years as a federal prosecutor in New Jersey to the past 15 years as a Newark-based judge on the Third Circuit Appeals Court--he has earned a reputation as the antithesis of the brash, grating Scalia. "He's conservative, but he's not a zealot at all," says Paul Fishman, a Democrat and attorney from New York City, who worked under Alito at the U.S. Attorney's office in New Jersey, when Alito strove to put away corrupt politicians and drug dealers--all while wooing his future wife Martha-Ann, a research librarian in the same office. (The couple have two children, a son, 19, and a daughter, 17.)

His former clerks and colleagues talk of Alito's quiet modesty and unfailing politeness, whether with interns or lawyers arguing cases in front of him. "He'll ask very penetrating questions, not to demonstrate his intellect, as some judges do, but to penetrate your thoughts," says veteran New Jersey attorney Donald Robinson. More important, those same people testify to Alito's methodical, open-minded approach to deciding cases, one free of dogma and much passion, for that matter. Not only is Alito very careful to follow existing precedent--as he did in invalidating a statute restricting late-term abortions that didn't include an exception for the health of the mother--but he has also shown he is capable of seeing two sides of any case. "It's very clear that in engaging cases he wouldn't start with the result and work his way backwards," says Michael Stein, a visiting professor at Harvard Law School who clerked for Alito from 1990 to 1991. In the case of an Iranian woman seeking political asylum in 1993 because of her feminist views, Alito affirmed that feminist opinions in general could constitute political statements for which a woman could reasonably fear persecution. But he rejected her bid for asylum, ruling that she did not prove she would be singled out for her beliefs.

There is another, less flattering way to characterize that kind of approach: Alito can be seen as overly focused on details and technicalities while missing the fundamental values embedded in such matters as job discrimination and jury selection. "He approaches law in a formalistic, mechanical way abstracted from human experience," says Goodwin Liu, a professor of constitutional law at the University of California, Berkeley.

THE POWERS THAT BE