Bush's New Nominee: Not Always on the Same Page as Scalia

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conservative bent of judge Sam Alito, who President Bush nominated this morning to the U.S. Supreme Court, has prompted facile comparisons to Justice Antonin Scalia, arguably the most stridently conservative member of the court. But clerks and associates say the comparison, often made with the derisive nickname of "Scalito," does a disservice to the man. "I think he really looks at the facts of the case; he'd be very realistic," says former clerk Katherine K. Huang. "He doesn't have his head in the clouds. He's not going to be carried away by some legal doctrine or some arcane grammatical rule." Huang is refering to a little-known Social Security case in 2002 which may be instructive when it comes to comparing Alito to Scalia.

In that case, Alito argued passionately with other members of the 3rd Circuit Appeals Court that a disabled woman, Pauline Thomas, should be granted benefits because she had been laid off from her job as an elevator operator and could not find a new job since the position of "elevator operator" had virtually disappeared from the economy. A lower court had ruled that a narrow and technical reading of the Social Security statute did not entitle Thomas to benefits. Alito called this result "absurd" and overrode the objections of several of his colleagues and convinced the full 3rd Circuit to overturn the lower court decision.

Alito's passion didn't move the Supreme Court, however, which overturned his decision in 2003. In a pointed rejection of Alito's opinion—accusing him of "disregarding" basic grammatical rules for interpreting the law—the Supreme Court fell back on the narrow and technical reading and denied Thomas her Social Security benefits. The author of this stinging rebuke to Alito? Justice Antonin Scalia.

Nevertheless, as an appeals court judge, Alito has had a strong conservative record. Perhaps his most famous case came only a year into his judgeship, in 1991, when he dissented from a decision by his fellow appeals court judges striking down a Pennsylvania law that required women to inform their husbands before obtaining an abortion. In 1996, he dissented from a decision broadening the rights of workers suing over sex discrimination. A year later, he upheld the display of a Nativity scene in front of city hall in Jersey City, N.J. because it was multi-denominational, including not only a creche and a menorah, but also Frosty the Snowman. On the bench, Alito is known to be unfailingly polite, but pointed in his questioning.

Alito's 15 years on the bench have been smooth, with one exception. In 2003, he was accused of conflict of interest after he dismissed a lawsuit against the Vanguard mutual fund. It emerged after the decision that he had a substantial amount invested in Vanguard. He denied any wrongdoing, though he immediately removed himself from the case when the plaintiff requested a new hearing.

Clerks and associates who have worked with him paint a picture of a polite, modest, quietly humorous man who enjoys baseball—he's a Phillies fan—and likes exploring the ethnic restaurants that surround his office in Newark. They say he is hardworking, but makes a point of being home with his family as often as possible. In 1987, he became the U.S. Attorney for New Jersey, where he earned a powerful friend—Michael Chertoff, then his deputy and now the Director of Homeland Security. When Alito was nominated to the appeals court, he pressed for Chertoff to succeed him as U.S. Attorney, helping him to rise above other candidates for the job.