Keeping It Real; the Left Fears Him. the Right Loves Him. Why Both Sides Don't Quite Get Samuel Alito

Article excerpt

Byline: Stuart Taylor Jr. and Evan Thomas (With T. Trent Gegax, Richard Wolffe, Pat Wingert, Jessica Silver-Greenberg, Martha Brant and Steve Tuttle Graphic by Andrew Romano and Karl Gude)

For many intellectuals, the ideal of Blind Justice, impartially weighing her scales, went out the window about 80 years ago. At Yale Law School in the 1920s and '30s, a highly influential group of scholars called the Legal Realists argued that the law was not a set of fixed, unchanging rules--"not a brooding omnipresence in the sky," as Justice Oliver Wendell Holmes once put it. The Legal Realists contended that, inevitably, judges were influenced by their political views and personal values, whether they admitted it or not. There was a lot of truth to what the Legal Realists were saying. Today it is almost ajournalistic cliche that judges are either liberal or conservative, that the law is nothing but politics in disguise and that judges couldn't be neutral if they tried.

Nonetheless, they are supposed to try. And, in fact, most judges do try to set aside or at least check their personal political leanings when ruling on a case. Judging from his life story and judicial record, few try harder than Sam Alito.

When Alito arrived at Yale Law School in the fall of 1972, most of the students saw themselves as political activists. At Yale, it was fashionable (then and now) to believe that the law could be used as a tool of social reform. In this hothouse atmosphere (Bill and Hillary Clinton were third-year students) Alito was an island of dispassion. A classmate, Anthony Kronman, recalls that the first time Alito was called on in class, "he answered with such calm that I was taken aback." Unlike the other students, who viewed the law through an ideological prism, Alito was more interested in the nuts and bolts--the complexities, the importance of precedent, the uses of logic and reason. "At the time, if you had asked me what Sam's political slant was, I would have been at a loss to tell you," says Kronman, who is a former dean of Yale Law School.

Over the next several weeks, Democratic activists will go all-out to paint Alito as a hard-line conservative. He will be branded "Scalito," a perfect twin for Justice Antonin Scalia, one of the Supreme Court's most reliably right-wing votes on issues such as abortion and gay rights. The left-wing interest groups, which have been preparing for years for a once-in-a-generation fight to stop a right-wing judicial appointment, are planning on flooding the airwaves and Internet with anti-Alito diatribes. They see Alito as another Robert Bork, the conservative Supreme Court nominee they blocked with a furious lobbying campaign in 1987 during the Reagan administration.

They may have picked the wrong man. Alito, 55, is, like Scalia, an Italian-American from New Jersey, but he has a different judicial temperament. Scalia (like Bork before him) is charmingly acerbic, outspoken and doctrinaire. Alito is none of the above. He is modest and dweebish; he does not opine with bold strokes or from preconceived notions but rather analyzes meticulously, tirelessly, tediously and, usually, colorlessly.

Conservatives will praise Alito for his "judicial restraint" while secretly counting on him to deliver the right results, in particular voting to overturn Roe v. Wade , the court's 1973 decision guaranteeing women a right to have abortions. Right-wingers, too, may be disappointed. Alito's classmate from Yale, Mark Dwyer, an assistant district attorney in New York, says, "Even if he does think abortion is wrong, he would never vote to overturn it, given his deference to precedent." Predicts Alito's old friend: "Roe is totally safe." In fact, it is hard to predict with assurance. While lower and appellate judges must follow precedent, Supreme Court justices have more freedom to reverse their own rulings.

Asked to name his favorite justices, Alito gives telling answers. …