Alito: seen as a pragmatic conservative
(Reuters)
Updated: 2006-01-15 11:08

In his 33 years on the court, Rehnquist stopped short of overruling precedent in several cases and instead took steps that sometimes essentially gutted existing law, said Neil Kinkopf, a professor at Georgia State University's College of Law who worked in the Clinton Justice Department.

Kinkopf expects the same from Alito considering his 15-year record on the Philadelphia-based 3rd U.S. Circuit Court of Appeals.

"He doesn't directly overrule. Through indirection he eviscerates," Kinkopf said.

Abortion rights supporters and many of the Senate committee's Democrats fear that Alito, who wrote in 1985 about chipping away at abortion rights rather than launching a "full frontal assault," would vote to undermine the 1973 abortion decision.

Alito told the Senate committee that his opinions in the 1985 memo "were a true expression of my views at the time from my vantage point as an attorney in the solicitor general's office." He promised to address the issue with an open mind if confirmed to the high court.

Rick Garnett, a professor at Notre Dame Law School who clerked for Rehnquist, said he sees both Roberts and Alito as carrying out the legacy of Rehnquist.

"The chief was a really smart guy, not incredibly flashy, not staking his work on a unified grand theory," Garnett said. "He was both principled and pragmatic." Alito, according to Garnett, is a "careful judicial craftsman, and to the extent he has a judicial philosophy, it's more conservative than his critics would like."

The unflappable Alito gave his detractors little ammunition in days of testimony, offering a recitation of the facts of appellate court cases when Democrats sought personal opinions. He provided basic tenets that few would challenge — no president or court is above the law, court decisions on integration and privacy were correct, and the principle of one man, one vote, should prevail.

Senators were unable to elicit much more even though Alito had a long paper trail from the appellate court.

"Perhaps the greatest part of the preparation was just making sure he had refreshed his memory in terms of what he had written over the years," said Fred McClure, who helped prepare Scalia, Thomas and Justice David Souter for their confirmation hearings.

Senators pressed Alito on executive power, particularly in light of the revelation that Bush had secretly authorized the National Security Agency to wiretap Americans as part of the fight against terrorism. The nominee spoke of constitutional authority and congressional prerogatives, but he gave no hints of how he might rule.

Said Carl Tobias, a professor at the University of Richmond's T.C. Williams School of Law, "Part of the point is to say as little as you can."