Alito or Scalito?

The law, lawyers, and the court.
Nov. 1 2005 6:24 PM

Alito or Scalito?

If you're a liberal, you'd prefer Scalia.

(Continued from Page 1)

Alito would also look more moderate if he sat on the very conservative 4th or 5th circuits. But recent news reports have vastly overstated the liberalism of the 3rd. In late 1996, the 3rd Circuit's active judges numbered 10 Republicans and two Democrats, and today the court is evenly divided on partisan lines. Alito regularly finds himself to the right of quite conservative colleagues.

There's also an interesting question about freedom of speech. Neither Scalia nor Alito is a free-speech absolutist. Both have protected businesses' right to advertise, but not prisoners' right to read, for example. In an early battle in the war over political correctness, Scalia struck down a Minneapolis law barring bias-motivated speech; Alito recently echoed that decision in his own ruling against a campus anti-harassment policy. Yet in the only free-speech case many Americans know about, Scalia evoked the right's fury by casting the fifth vote to strike down a law barring flag burning. There's no evidence Alito would take on the right the same way.

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Alito does appear more sensitive to the claims of religious minorities. Scalia famously rejected the claim of two members of a Native American church that they should be exempted from anti-peyote laws; Alito distinguished that case to rule in favor of Muslim police officers who felt religiously obligated to wear their beards. And Alito seems to be on the better side of that argument. But today, when leaders of the religious right have made so much of their own victimization, his position is hardly a mark of ideological heterodoxy. These conservatives celebrate Judge Michael McConnell for his critique of Scalia's view.

If you are the sort of person who believes conservatives are always right, Alito's consistency in many matters will cheer you. Maybe it will even send you into the same earthly rapture that America's right has experienced since Monday morning. But if you are the sort of person who believes that conservatives and liberals both tell some of the truth and neither tells all of it, you may prefer the sort of conservative judge who ventures out of camp more often. Most Americans probably feel that way, which is why most Americans probably should think carefully about Samuel Alito's confirmation.

When Antonin Scalia starts looking good, you know you're in trouble.

Robert Gordon is a senior fellow at the Center for American Progress Action Fund.

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