The Cool Fervor of Judge Alito

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Legal scholars on both sides suggest that the most telling stretch of his biography is the quick run from 1985 to '90, beginning when he took the Office of Legal Counsel job and ending with his elevation to his current post on the circuit court. Colleagues say he was admired for collegiality. When two of his young aides had to finish a memo for the next day, he stayed with them past midnight and went to the law library to fact-check the memo they wrote, a task usually left for much more junior aides. But at his new job at Justice, what his co-workers remember above all is that he lived up to his reputation as focused more on legal reasoning than on political doctrine. "The others were much more open about being part of a revolution," says Marc Miller, a Democrat who worked in the office and is now a law professor at Emory University. "Sam was the least of that, a good lawyer and soft-spoken." Alito sometimes frustrated staff members by examining issues from all sides, sending attorneys back to rethink memos if he didn't think they had explored them all. In one often cited memo he wrote before he entered the legal counsel's office but that is emblematic of his scholarly approach, Alito argued that the Administration should not press the Supreme Court into throwing out a suit from the Black Panther Party that accused federal officials of conspiring against the group. Disagreeing with the Justice Department, the FBI and the CIA, he said none of the legal issues in the case—such as questioning a lower court's ruling that said it was important that the Black Panthers be allowed to keep their membership list private—merited Supreme Court review and the department should try to win the case in lower courts.

Part of the job of the Office of Legal Counsel is to protect the authority of the President. And in that department, Alito seemed to support expanding the power of the presidency in ways that worry congressional Democrats today. He was part of the Litigation Strategy Working Group, a team of about a dozen officials that Attorney General Edwin Meese appointed to help embed Reagan's philosophy more deeply into the legal system. In a 1986 memo to the group, Alito proposed to have Reagan issue "signing statements," defining exactly how the President understood a law's meaning, when he approved a bill that Congress had passed. Reagan issued such statements occasionally, but the Bush Administration has dramatically expanded their use. In one issued two weeks ago, which infuriated both Democrats and Republicans, Bush suggested he would reconsider a recently passed torture ban if he felt there was an imminent national-security threat.