The Cool Fervor of Judge Alito

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With the endorsement of Attorney General Meese, under whom Alito had worked in Washington, as well as the support of several New Jersey Republican officials who had long admired his father, Alito landed the U.S. Attorney job in early '87. He moved quickly to make the office less hierarchical. He instituted an open-door policy that allowed defense lawyers to come in and meet to discuss cases with him personally rather than with one of his aides. He met individually with more than 70 of the attorneys in his office to get their input when he first arrived there. And at news conferences at which indictments were announced, Alito made sure to introduce his deputies and let them answer questions, so they could appear in front of the cameras and get credit for the office's work as well.

One of his first moves may have been his best. Realizing he didn't have much experience as a prosecutor, he brought in one of Southern New York U.S. Attorney Rudolph Giuliani's stars from across the river, Michael Chertoff, to serve as his top deputy. Together they decided to shift the office's priorities, going after fewer small drug deals and focusing more on public corruption and Mob cases. "We both agreed we should avoid a lot of rinky-dink cases," Chertoff, who is now the U.S. Homeland Security Secretary, told TIME. The result was that Alito prosecuted far fewer drug cases than his predecessor had but also won some major cases, including several convictions of members of the Genovese crime family who had sought to kill Gambino Mob boss John Gotti.

Democrats looking at Alito today are worried that his tenure as a prosecutor has affected his track record as an appeals court judge, a position in which he has overwhelmingly favored police and the government in criminal cases. He defended the strip search of a 10-year-old girl, saying drug dealers sometimes use children to help with their crimes. He ruled that evidence obtained by the FBI while monitoring a suspect for several months in his hotel suite without a warrant was permissible because police turned on video cameras only when an informant who was cooperating with officers entered the suspect's hotel room. In an opinion later overturned by the Supreme Court, he upheld a man's death sentence—even though his lawyers had failed to present evidence that he was abused as a child and had limited mental capacity—saying the defendant was demanding that his defense attorneys be more resourceful than the Constitution requires.

After Alito's three years as U.S. Attorney, President George H.W. Bush tapped him to be an appeals court judge in Newark, a position he has held for 15 years. When Alito was first nominated, it was expected that Democrats would attack him for his opinions as a judge, particularly a 1991 dissenting opinion in which he defended a Pennsylvania law that said a woman must notify her husband before she has an abortion. Democrats also seized on Alito's record of ruling against employees who allege gender or racial discrimination. They were alarmed too by the 1985 Justice Department application and wondered why Alito said he was opposed to Supreme Court decisions in the 1960s promoting reapportionment, which was designed to ensure fairer representation of urban minorities.