Rushing to judge Alito.

Byline: The Register-Guard

Conservatives and liberals agree on one thing about Samuel Alito: His record leaves a trail that any hound can follow. Accordingly, conservatives bayed their approval when President Bush announced Alito's nomination to the U.S. Supreme Court Monday, and liberals bristled like porcupines. Discussion has already skipped forward to the question of whether Senate Democrats will mount a fillibuster.

Alito no doubt deserves his reputation as a conservative jurist - Bush would not have nominated him otherwise. But not all of the signs along his paper trail point in the same direction. The Senate Judiciary Committee's hearings may reveal him to be more complicated than his caricature. Americans should hope for such a result, because the Supreme Court needs more than certitude from its members.

The ease with which Alito's political and legal opinions have been pigeonholed stems in part from the contrast with Harriet Miers, whose nomination imploded last week. Miers' main qualification was the trust the president placed in her - beyond that, she had no experience as a judge and a thin record of public service that could be subjected to analysis. Conservatives, who have accepted much from the Bush administration on faith, revolted against the Miers nomination. Having accepted the impeccably credentialled but ideologically opaque John Roberts as chief justice, they demanded that Bush fill the vacancy created by Sandra Day O'Connor's retirement with a known conservative in the mold of Clarence Thomas and Antonin Scalia.

Alito presumaby fits the bill. He's served for 15 years on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, and is described as the most conservative member of that moderate to left-leaning court. He worked in the Reagan administration, the fountainhead of modern conservatism, as a deputy assistant attorney general and deputy solicitor general. He was the U.S. attorney for the District of New Jersey before winning unanimous confirmation to the appeals court in 1990.

Fifteen years on the federal bench, and 10 previous years in federal employment, should be long enough to compile a definitive judicial record - indeed, Bush described Alito as having more judicial experience than any Supreme Court nominee in 70 years. But some of the cases being used to define Alito's judicial philosophy leave room for ambiguity.

Critics of the Roe vs. Wade decision that established a woman's legal right to abortion, for instance, point to Alito's dissent in a 1991 case in which the appeals court struck down a provision of a Pennsylvania law requiring women to notify their spouses before obtaining abortions. The U.S. Supreme Court sided with the appeals court majority, thereby reaffirming Roe vs. Wade. If Alito had been in O'Connor's seat, the decision would have gone the other way.

Yet in 2000, Alito joined the appeals court majority that struck down a New Jersey law banning the practice called partial-birth abortion, on grounds that it lacked a provision allowing the procedure to protect a woman's life. Alito was following the U.S. Supreme Court's rulings in that case, and as a member of the high court he will not be so strongly bound by precedent. Yet it's possible to read his position both as a sign of respect for precedent in abortion cases and as an acceptance of O'Connor's principle that limits on abortion rights must not impose an "undue burden" on women.

No one should expect Alito to emerge as a pro-choice justice. Within the spectrum of anti-abortion opinion, however, there's room for the view that legislative efforts to roll back abortion rights are constrained by 30 years of jurisprudence. It's too early to tell where Alito falls on that spectrum.

Similarly, Alito's record includes opinions upholding free speech (he voted to invalidate a Pennsylvania law barring a campus publication from accepting payment for liquor ads), individual liberties (he sided with the majority in ruling that a police department can't require bearded Muslim officers to shave) and religious freedom (he wrote the majority decision in a case approving a holiday display on public property that contained a variety of religious and secular symbols). Whether these decisions reflect conservative, liberal or libertarian ideas is hard to say.

The morning Bush announced Alito's nomination, the political battle lines were clearly drawn. Americans should hope that Alito's legal mind is complex enough to cause those lines to blur in the days ahead.