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As Liberals Prepare to Oppose Alito, Jewish Observers See Shades of Gray

November 1, 2005
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The long paper trail of hard-hitting conservative opinions that Judge Samuel Alito has left in his wake is perfect fodder for the kind of left vs. right, black-and-white confirmation battle that this town relishes. For Jewish groups, however, the clarity of Alito’s record fades to gray.

President Bush’s new nominee to the U.S. Supreme Court has upheld religious freedoms that the entire Jewish community cherishes, on one occasion strongly defending the right of a Jewish employee to Sabbath observance. Yet his views on the establishment of religion as well as abortion hew to a tough conservative line that much of the community repudiates.

“He wrote a very important opinion in expanding what little is left of the free-exercise clause,” Marc Stern, co-director of the legal department of the American Jewish Congress, said, referring to the constitutional guarantee of free religious practice.

On the other hand, in several cases dealing with the constitutional prohibition against the establishment of a state religion, Alito indicated a leaning in favor of religious speakers “to the exclusion of those who might not want to listen,” Stern said.

Stern emphasized that the AJCongress had yet to make a decision on where it stands regarding Alito.

Bush announced the nomination of Alito, 55, on Monday, just days after Harriet Miers, his White House counsel, withdrew her name. Miers’ lack of a paper trail was the straw that broke the back of support among social conservatives, who for years have been clamoring for an unambiguously conservative nominee.

A corporate lawyer, Miers also drew fire because of her lack of judicial or constitutional experience.

By contrast, Alito’s 15 years on the 3rd U.S. Circuit Court of Appeals, based in Philadelphia, establishes a strong constitutional and conservative record. Social conservatives who vigorously opposed Miers’ nomination immediately hailed the decision.

“President Bush has hit a home run with this nomination,” Roberta Combs, president of the Christian Coalition of America, said in a statement.

Just as predictably, liberal groups mounted an immediate battle.

“The judicial philosophy of Samuel Alito is far to the right,” People for the American Way wrote at the start of a 24-page evisceration of Alito’s record, posted on the group’s Web site within minutes of his nomination.

“He has demonstrated hostility toward the principles undergirding a woman’s constitutionally protected right to govern her own reproductive choices.”

Liberals already were making much of a nickname Alito earned among some lawyers, “Scalito” — meaning “little Scalia,” a reference to Antonin Scalia, widely regarded as the most conservative judge on the Supreme Court.

National Jewish groups at times have been pivotal in joining liberals in opposing judicial candidates; President Reagan’s failed nomination of Robert Bork in 1987 stands out as an example. The White House was eager on Monday to get out the message that Alito was safe for the Jews.

“Judge Alito has been a strong defender of religious liberty as guaranteed by the First Amendment,” Jeffrey Berkowitz, White House liaison to the Jewish community, wrote in an e-mail within minutes of the announcement.

Legal scholars say Alito substantially expanded First Amendment rights in 1999, when he ruled that the Newark, N.J., police department violated the rights of Muslim officers by banning them from wearing beards, though it allowed an exception for health reasons.

Another Alito opinion had a more immediate impact on Jewish observance. In Abramson v. William Patterson College in 2001, the court considered the case of Gertrude Abramson, who sued the New Jersey institution in 1995, claiming that it violated an earlier agreement to allow her to take off Jewish holidays. Abramson also alleged a pattern of harassment, including meetings scheduled on the Jewish Sabbath.

The court ruled in Abramson’s favor, but Alito’s separate concurrence was even stronger, citing favorably an amicus brief filed by the Orthodox Union.

Title VII, the applicable civil rights law, “does not permit an employer to manipulate job requirements for the purpose of putting an employee to the ‘cruel choice’ between religion and employment,” Alito wrote.

Such insights are typical of Alito, his former law clerk, Jeffrey Wasserstein, told JTA.

“He is a Catholic, but his sensitivity to non-majority religions was quite interesting to watch, not what one would expect from someone being tarred by the press as extraordinarily conservative,” said Wasserstein, an observant Jew who served with Alito from 1997-98 and now is a health care attorney.

Despite his tough opinions, Alito has a reputation as a modest, accommodating figure, even among his most strident opponents. People for the American Way noted that — unlike Scalia, whose sarcasm is notorious — Alito’s “tone during oral arguments is probing but always polite.”

Wasserstein agreed.

“He is very modest and self-effacing,” he said.

Alito expressed interest in Wasserstein’s own Sabbath observance, and was quite probing when it came to religious cases, he said.

“During the Muslim police case, we spoke about Islam and its precepts,” Wasserstein recalled.

Wasserstein insisted that Alito did not come to cases with preconceptions, but liberal groups and their allies in the Jewish community already were fretting at a body of work that suggests otherwise. Of special concern are two cases in which Alito upheld the right of New Jersey towns to display Christmas-season creches.

In the opinion in the creche cases, “he was on the opposite side of much of the Jewish community,” said Mark Pelavin, associate director of the Reform movement’s Religious Action Center.

Alito’s assent in a 1992 abortion-rights decision is perhaps his most controversial. The court upheld a Pennsylvania law that imposed a 24-hour waiting period for women who wanted abortions, required minors to inform their parents and required abortion clinics to publish reports about their operations.

Defeating that case became a rallying cry for pro-choice advocates, and the U.S. Supreme Court struck it down in a landmark decision the same year.

Significantly, however, the appeals court had struck down a portion of the law that required women seeking abortions to inform their husbands. Alito was the lone dissenter from that part of the decision, saying such notification was not an undue burden for women. His willingness to go a step beyond marked him as an “extremist” in liberal circles.

The National Council of Jewish Women, which usually takes the lead in abortion-related announcements, has yet to weigh in, but sources said the group is working on a strategy.

Rep. Nancy Pelosi (D-Calif.), the Democrats’ leader in the U.S. House of Representatives, already has linked Alito to “the radical conservative right.”

Sen. Arlen Specter (R-Penn.), the Jewish chairman of the Senate Judiciary Committee, which must consider Alito’s appointment, was more circumspect, but notably held back the enthusiastic endorsement of other Republican senators.

“We are in the process of assembling his opinions,” said Specter, a Republican moderate who is pro-choice. “It is estimated that he has been involved in about 3,500 cases and has some 300 opinions which he has written.”

That record suggests a clear battle, Pelavin said.

“We’re going to have the kind of debate over judicial philosophy in the Senate that has long been brewing,” he said.

The Jewish lines already were being drawn.

The Orthodox Union does not endorse judicial candidates, and Alito is not an exception, said Nathan Diament, the O.U.’s Washington director.

However, Diament said, Alito is “clearly someone who is sensitive to religious minorities.”

Should the left mount a multibarrelled assault on Alito’s church-state record, Diament said, “our role will be making his record clear, trying to prevent it from being distorted.”

Pelavin suggested the Reform movement also would have a role to play — probably not one particularly sympathetic to Alito.

“It’s not just about competence, it’s about the court shifting on fundamental issues, including reproductive rights and religious liberty,” he said.

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