Would Alito tip the Supreme Court's balance?

Pete Williams Justice correspondent • Profile

WASHINGTON - Senators who will eventually vote on Judge Samuel Alito — and the interest groups which hope to persuade them — are sorting through the legal opinions he's written during his 15 years as a federal judge.

It's likely he would push the court to the right and could even affect some cases now before the court if he's confirmed. But there are some surprises, too, among the views he has expressed in the past.

Wednesday, Alito met more of the senators who will soon judge him, including a cenrist Democrat who found something to like.

"He assured me that he is not bringing a hammer and chisel to hammer away and chisel away on existing law," said Sen. Ben Nelson, D-Neb.

Interest groups on both sides are scouring Alito's hundreds of legal rulings to get a picture of how he'd differ from Sandra Day O'Connor, whose seat he would take.

Legal scholars say Alito bases his rulings on conservative legal principles rather than relying on the facts of individual cases, as O'Connor often does.

"Justice Alito, if he's confirmed, I believe will be more inclined toward general black-and-white legal rules that will be easier to apply in future cases," says appeals court lawyer Mark Levy.

Based on their past rulings, many legal experts say Alito might be more likely than O'Connor to support state restrictions on access to abortion and less inclined to grant new hearings for death row inmates. In recent years, O'Connor has expressed a growing unease with capital punishment.

But Cass Sunstein, a constitutional law expert at the University of Chicago, says Alito would probably part company with the Supreme Court's two most conservative justices on whether the Constitution should be interpreted as its authors understood it.

"He hasn't endorsed the view that Justices Scalia and Thomas have endorsed,” Sunstein says, "which is that the original understanding of the Constitution is binding."

Senators may also ask Alito about a newly discovered paper on privacy that he worked on while at Princeton in 1971. Written by a student group he chaired, it said no private sexual act between consenting adults should be illegal and that discrimination against homosexuals in hiring should be forbidden.

Wednesday, Democrats say there's no question that Alito is qualified, but they want to know if he's in the conservative mainstream and not the far right.

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