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Friday, July 01, 2005

Affirmative Action Justice Steps Down: Possible Replacements

Potential candidates for the court

Samuel A. Alito

Dubbed "Scalito" or "Scalia-lite" by some lawyers because his judicial philosophy invites comparisons to Supreme Court Justice Antonin Scalia, Alito, 55, has been a strong conservative voice in his 15 years on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, which is considered to be among the most liberal.

On one hot-button issue, Alito was a lone dissenter in a case striking down a Pennsylvania law requiring women seeking abortions to inform their husbands. Alito argued that the Pennsylvania legislature "could have rationally believed" that married women might seek abortions because of perceived problems such as finances or a husband's prior opposition that could be rectified if the couple talked before an abortion.

The case was appealed to the U.S. Supreme Court, which struck down the spousal notification requirement and reaffirmed the Roe v. Wade decision that legalized abortion.

Alito also has written a majority opinion holding that a city's holiday display that had a menorah did not violate the First Amendment's establishment clause-- which bars the federal government from declaring a national religion-- because it included secular symbols such as Frosty the Snowman.

He dissented in cases that loosened the legal standards for bringing a sex discrimination lawsuit.

In a dissent to a 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.

On the bench, Alito is known to be probing but more polite than the often-caustic Scalia.

Before President George H. W. Bush nominated Alito to the federal appeals court in 1990, he served as U.S. attorney for the District of New Jersey (1987-1990), where his first assistant was Michael Chertoff, now the Homeland Security Department secretary.

Alito was the deputy assistant attorney general in the Reagan administration (1985-87) and assistant to the solicitor general (1981-85).

His New Jersey ties run deep. The son of an Italian immigrant, Alito was born in Trenton and graduated from Princeton University. He headed to Connecticut and Yale University, where he received his law degree in 1975.

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 an 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 a May 2005 profile in The Newark (N.J.) Star-Ledger, Alito said, "Most of the labels people use to talk about judges, and the way judges decide (cases) aren't too descriptive. ... Judges should be judges. They shouldn't be legislators, they shouldn't be administrators."

Emilio Garza

A former Marine and Texas state judge, Garza, 58, sits on the New Orleans-based 5th U.S. Circuit Court of Appeals and was considered for a Supreme Court seat by the first President Bush.

Appointed a federal judge by President Reagan and elevated to the 5th Circuit in 1991, he has become best known for his views that Roe v. Wade should be overturned and that abortion regulation should be decided by state legislatures.

In 1992, for example, he voted to strike down a Louisiana law criminalizing abortion in deference to Supreme Court precedent. But in his opinion, Garza made clear his disdain for Roe v. Wade.

"Two essential facts seem apparent: The Constitution says absolutely nothing about abortion and ... the long-standing traditions of American society have permitted abortion to be legally proscribed," he wrote. "Because the decision to permit or proscribe abortion is a political choice, I would allow the people of the state of Louisiana to decide this issue for themselves."

In 1997, Garza voted with the majority to strike down a Louisiana law allowing judges to deny abortion to a minor and notify her parents. He criticized Roe's legal reasoning in a concurrence.

His opinions in those two cases have drawn the ire of women's and abortion rights groups, who fear that if elevated to the high court Garza would be a reliable vote to overturn Roe v. Wade.

An avid questioner in oral arguments, Garza's written opinions tend to be clear and scholarly.

In other cases:

Garza dissented from a 5th Circuit decision in 2001 affirming a lower court decision to grant a prisoner's habeas corpus petition. The prisoner established that his attorney had slept through major portions of his trial. Garza argued that the claim of ineffective counsel was insufficient because the prisoner failed to show that the trial's outcome was prejudiced by the sleeping lawyer.

Garza wrote for the 5th Circuit majority in a 1999 case upholding a district court's summary judgment in favor of the police and city of Lago Vista, Texas, in a civil rights case in which a woman alleged her Fourth Amendment rights against unreasonable searches and seizures were violated when she was arrested for driving without wearing a seat belt, a violation of state law. Her children also were not wearing seat belts, another violation of Texas law. Garza said there was probable cause for the arrest and that it was not conducted in an "extraordinary manner" harmful to the woman's privacy interests. Such a violation is a misdemeanor, typically punishable by a fine.

Garza was born in San Antonio, Texas, and received his bachelor's and master's degrees from the University of Notre Dame. He returned to Texas and earned his law degree from the University of Texas in 1976.

J. Michael Luttig

The 51-year-old Luttig is considered a solid conservative choice. The Texas native worked in the Justice Department during the first Bush administration and has served on the 4th U.S. Circuit Court of Appeals in Richmond, Va.

The self-described legal nerd wrote the 1999 4th Circuit decision that struck down a key provision of 1994 Violence Against Women Act. The Supreme Court agreed on a 5-4 vote that Congress overstepped its bounds in giving rape victims the right to sue their attackers for monetary damages.

In that ruling and others, Luttig has been a defender of states' rights to set their own policies-- a hallmark of Chief Justice William H. Rehnquist's jurisprudence.

Criminal cases and rendering justice are more than theoretical exercises for Luttig, whose father was murdered in a carjacking more than a decade ago.

In 1994, Napoleon Beazley, 17, confronted businessman John Luttig in the driveway of his Tyler, Texas, home and shot him twice in the head. Luttig's wife, Bobbie, was shot at and crawled beneath the couple's Mercedes Benz and played dead.

In an interview with the Tyler Morning Telegraph, the younger Luttig said his father was a compassionate man who would have given his car to Beazley. He also testified at Beazley's trial, saying, "My dad was my hero. He still is my hero. I worshipped the ground he walked on. I still do."

Beazley was executed in 2002 after the Supreme Court deadlocked 3-3 on his appeal to stop the execution. A tie allows an execution to proceed.

Three justices recused themselves from the case-- Antonin Scalia, Clarence Thomas and David Souter.

The younger Luttig had clerked for Scalia from 1982-83 when Scalia was a member of the U.S. Court of Appeals for the District of Columbia Circuit. In 1991, during the rancorous Supreme Court nomination fight over Thomas, Luttig helped shepherd the nominee through the process.

The Supreme Court is familiar territory for Luttig.

He served as a law clerk to Chief Justice Warren Burger from 1983-84 and a special assistant to the chief justice from 1984-85. After four years in private practice, Luttig worked in the Justice Department in the first Bush administration and was assistant attorney general, Office of Legal Counsel.

The Virginia resident graduated from Washington and Lee University and received his law degree from the University of Virginia. In 1991 President Bush made him the youngest federal appeals court judge-- at age 37.

Michael McConnell

A respected conservative legal scholar, McConnell, a judge on the Denver-based 10th U.S. Circuit Court of Appeals, enjoys bipartisan support in the academic community. He opposed President Clinton's impeachment and the Supreme Court's 2000 ruling in Bush v. Gore that made George W. Bush the president.

Liberal interest groups are wary of McConnell because he is personally opposed to abortion. He has criticized the legal reasoning in Roe v. Wade and as a law professor, used Life magazine photos of fetuses to spark student discussion of whether abortion amounts to a taking of human life.

During his 2002 Senate confirmation hearing for the federal appeals court, however, McConnell insisted he would follow precedent in upholding Roe.

"The abortion question is completely settled," he told senators. "The only avenue for change is through constitutional amendment. ... It is not going to happen." At another point, he stated: "It is settled law. I am committed to enforcing and obeying that."

After McConnell was questioned by the Senate Judiciary Committee, Democratic Sen. Charles Schumer of New York said that while he disagreed with many of McConnell's positions, the nominee "showed himself to be more of an iconoclast than an ideologue" in his candid discussion of his views.

His writings advocate ending the rigid separation of church and state that prevailed in the 1970s, and he thus supports school vouchers. That shift to a more "neutral" state approach to religion is central to the Bush administration's goal to funnel more government money to religious social service programs.

The self-described theologically conservative Christian, however, opposed government-sponsored prayer in schools.

McConnell, 50, also is a strong supporter of judicial restraint, arguing that Congress and not the courts should be the authority on defining and enforcing civil rights.

McConnell is not without critics from the political right. Lawyer Andy Schlafly, the son of longtime conservative activist Phyllis Schlafly, recently wrote that McConnell is "every bit as hostile to conservative legal principles as (David) Souter turned out to be." Souter was named to the Supreme Court by the first President Bush and has disappointed conservatives by repeatedly siding with its more liberal members. Schlafly cited McConnell's refusal to say Roe v. Wade should be overturned, as well as a legal philosophy that "hostile to government expressions of faith."

John G. Roberts

Roberts, who has been on the U.S. Court of Appeals for the District of Columbia Circuit since June 2003, was one of President Bush's least contentious picks for the bench.

A former Rehnquist clerk, Roberts was associate counsel to President Reagan from 1982-86 and then served in the first Bush administration, arguing cases before the Supreme Court from 1989-93.

During the Clinton administration, Roberts became a highly sought-after private lawyer in Supreme Court cases, representing clients such as the National Collegiate Athletic Association in a discrimination case, and carmaker Toyota in winning limits on a disabled workers claims.

Roberts had been in line to join the appeals court in 1992, but his nomination during the first Bush administration died in a Democratic-controlled Senate.

Roberts, 50, has generally avoided weighing in on disputed social issues. Abortion rights groups, however, have maintained that he tried during his days as a lawyer in the first Bush administration to overturn Roe v. Wade.

Roberts did help write a brief that stated "we continue to believe that Roe was wrongly decided and should be overruled." Pressed during his 2003 confirmation hearing for his own views on the matter, Roberts said: "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

Roberts' nomination to the appellate bench attracted support from both ends of the ideological spectrum.

Some 146 members of the D.C. Bar signed a letter urging his confirmation, including officials from the Clinton administration. The letter stated: "He is one of the very best and most highly respected appellate lawyers in the nation, with a deserved reputation as a brilliant writer and oral advocate. He is also a wonderful professional colleague both because of his enormous skills and because of his unquestioned integrity and fair-mindedness.

A native of Buffalo, N.Y., Roberts received his undergraduate and law degrees from Harvard.

J. Harvie Wilkinson III

Wilkinson, 60, another prospect from the 4th Circuit, has been consistently conservative in his rulings since being put on the court by President Reagan in 1984.

For example, he was part of a panel that ruled in 2003 that the government could indefinitely detain without legal rights American citizens captured overseas in the war on terror. The Supreme Court reversed that decision, with moderate Justice Sandra Day O'Connor's blistering statement, "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

The Supreme Court agreed with Wilkinson, however, in his 1987 ruling that struck down a city minority set-aside program.

In his book, "One Nation Indivisible: How Ethnic Separatism Threatens America," Wilkinson explains his opposition to affirmative action, which he says is "the most dangerous of policy prescriptions for a multi-ethnic nation." He argues that such policies separate rather than unite the many races, and advocates for a celebration of multiculturalism and diversity.

He has less clear-cut views on the issue of reproductive rights.

Those who argue that Wilkinson supports Roe v. Wade point to a decades-old article he co-wrote in which he said that "although Roe has been severely criticized, the decision is not an illogical extension of the court's earlier decisions in matters of intimate association."

But in 1998, Wilkinson joined an opinion upholding a Virginia parental notification law for minors seeking abortions. Wilkinson called the law "a very mild and moderate form of regulation."

Unlike many other judges, Wilkinson frequently speaks and writes about his views on affirmative action and other subjects. Before his court career, he was editorial page editor of the Norfolk Virginian-Pilot and taught law at the University of Virginia.

While in law school he ran for Congress as a Republican and lost in 1970.

Wilkinson also:

Wrote the majority 4th Circuit opinion in 1996 upholding the "don't ask, don't tell" policy that barred gays serving in the military from revealing their sexual orientation.

Says judicial activism is frequently practiced by both liberal and conservative judges, which he seems to blame on a lawsuit culture that has shifted power from people to the judges (Michigan Law Review article, May 2000).

Frowns upon what he says is a trend by the Supreme Court of relying on international law or looking to what other countries do when deciding cases. Wilkinson said that while comparisons to other countries cannot be avoided in an age of globalism, "the court's legitimacy must ultimately rest on reliance and reference to the American Constitution and to American democratic outcomes."

Dissented on a panel of three judges that in 1986 upheld an emotional distress award for the Rev. Jerry Falwell, who was publicly lampooned in Hustler magazine. While criticizing the ad itself, Wilkinson said "nothing is more thoroughly democratic than to have the high and mighty lampooned and spoofed." The Supreme Court later overturned the emotional distress award.

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