As I’m sure everyone knows by now, President Bush has nominated Samuel Alito to replace Harriet Miers and will send his name to the Senate for confirmation to take Sandra Day O’Connor’s seat on the Supreme Court. It’s an interesting pick to me, as I would have put him about 3rd or 4th on the list of others with similar credentials. The pick was determined by the criteria Bush chose to use. If he was going to try again for a woman, there was one short list; if he was going to try and name the first hispanic to the court, there was a different short list. And if he was going to just pick from the top names, I would have ranked that short list roughly like this: McConnell, Luttig, Alito, Wilkinson. All have fairly similar resumes (though McConnell has a much stronger record as a legal scholar than the others, which is why I rank him at the top) and all are solidly conservative.
Alito has written some very interesting religion law opinions, which I haven’t had the chance to go through in their entirety yet. The most prominent is probably FOP v. Newark, in which Alito wrote the unanimous opinion for the court, ruling that the Newark police department could not forbid Muslim officers from having beards even though the policy against beards was generally applicable and not aimed at any particular religion. That suit was brought by the ACLU and the Becket Fund. Very strong free exercise case.
Another was ACLU v Schundler, a holiday display case from Jersey City. Alito wrote the majority opinion (2-1) upholding the constitutionality of a holiday display on public property. The court had previously struck down that city’s display on establishment clause grounds, but the city had changed it significantly, adding in secular symbols and the like to bring it in line with the controlling precedents, Lynch v Donnelly and Allegheny v Pittsburgh. Interesting to note that the defendant in that case, Jersey City, is an unusually diverse city that has a long history of providing public commemoration of a wide range of holidays of religious significance. They hold an annual parade on a Hindu holy day and have a public commemoration of Ramadan, Hannukah and others as well. So that’s a case in which O’Connor’s endorsement test would likely not be invoked, putting Alito’s ruling in line with the justice he would be replacing.
Another interesting case is Blackhawk v Pennsylvania, which came down last fall. It’s a free exercise case where an American Indian was seeking relief from a state law against keeping bears in captivity because, in his religion, black bears had great spiritual significance and were used in religious rituals. Alito applied the obvious precedent, Church of Lukumi Babalu Aye, Inc. v. Hialeah, and ruled that Blackhawk must be granted an exemption from those laws.
So far, I’ve seen nothing that makes me react badly in his religion clause rulings. He appears to be very strong on free exercise cases, but he applies the same standards to all religions. And on the establishment clause cases, the rulings I’ve seen are all reasonable. Of course, that is as an appeals court judge where one must rule pursuant to Supreme Court precedent, but his use of such precedents is reasonable and often compelling. He writes well, from what I’ve seen.
I’m sure more will come out on Alito over the next couple weeks. I make the same caution I made with Roberts, which is that you should not believe anything an interest group on either side says about his rulings or writings without looking it up for yourself. Court rulings often involve very narrow technical grounds which are easy to distort and make it sound as though the judge just wantonly came out against good and for evil.