Why Alito is a stronger choice than John Roberts.

I wanted President Bush to nominate someone like John Roberts, and I think Samuel Alito in fact deserves to be considered a stronger nominee than Roberts. He has the impressive educational background followed by a stellar career before becoming a judge, but he also has a much longer record as a judge -- 15 years to Roberts's 2. I am glad to see Bush not shy away from a person with a real judicial record. The fear of putting up a nominee with actual cases to peruse puts too many fine candidates off limits. To see Roberts as the ideal nominee is to prefer a judicial mystery, someone who is hard to know and hard to attack. With Alito, we can read his cases. It will be important to recognize that an inferior court judge is profoundly limited compared to a Supreme Court justice, but the judicial record is still highly valuable.

Here is an article summarizing a few of his hot-button cases:

In a 1999 case, Fraternal Order of Police v. City of Newark, the 3rd Circuit ruled 3-0 that Muslim police officers in the city can keep their beards. The police had made exemption in its facial hair policy for medical reasons (a skin condition known as pseudo folliculitis barbae) but not for religious reasons.

Alito wrote the opinion, saying, "We cannot accept the department's position that its differential treatment of medical exemptions and religious exemptions is premised on a good-faith belief that the former may be required by law while the latter are not."

In July 2004, the 3rd Circuit Court ruled that a Pennsylvania law prohibiting student newspapers from running ads for alcohol was unconstitutional. At issue was Act 199, an amendment to the Pennsylvania Liquor Code passed in 1996 that denied student newspapers advertising revenue from alcoholic beverages.

Alito said the law violated the First Amendment rights of the student newspaper, The Pitt News, from the University of Pittsburgh.

"If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment," Alito wrote.

In 1999, Alito was part of a majority opinion in ACLU v. Schundler. At issue was a holiday display in Jersey City. The court held that the display didn't violate the establishment clause of the First Amendment because in addition to a creche and a menorah, it also had a Frosty the Snowman and a banner hailing diversity.

In the case of Homar v. Gilbert in 1996, Alito wrote the dissenting opinion that a state university didn't violate the due process rights of a campus police officer when they suspended him without pay after they learned he had been arrested on drug charges.

One of the most notable opinions was Alito's dissent in the 1996 case of Sheridan v. Dupont, a sex discrimination case. Alito wrote that a plaintiff in such a case should not be able to withstand summary judgment just by casting doubt on an employer's version of the story.

In Fatin v. INS (1993), Alito joined the majority in ruling that an Iranian woman seeking asylum could establish eligibility based on citing that she would be persecuted for gender and belief in feminism.

In a 1996 ruling that upheld the constitutionality of a federal law banning the possession of machine guns, Alito argued for greater state rights in reasoning that Congress had no authority to regulate private gun possession.

The abortion case will surely get the most attention, but issues about religion and the Constitution should come to the fore as well. Alito will, if confirmed, replace Sandra Day O'Connor, and her swing-vote role was especially influential in the cases about the religion clauses. From the little I'm seeing here about Alito, he has a marked sympathy to pleas for accommodation from members of minority religions -- a tendency that alone should shake off the nickname Scalito. (See Scalia's majority opinion in Employment Division v. Smith.)

I look forward to a serious analysis of constitutional law issues and intend to do my part correcting distortions as various critics and proponents tear into his record.