Posted on January 3, 2006

Alito, In and Out of the Mainstream

Amy Goldstein and Sarah Cohen, Washington Post, January 1, 2006

During 15 years as an appeals court judge, Supreme Court nominee Samuel A. Alito Jr. has been highly sympathetic to prosecutors, skeptical of immigrants trying to avoid deportation, and supportive of a lower wall between church and state, according to an analysis of his record by The Washington Post.

Alito has taken a harder line on criminal and immigration cases than most federal appellate judges nationwide, including those who, like him, were selected by Republican presidents, the analysis found.

In civil rights cases, Alito has sided against three of every four people who claimed to have been victims of discrimination, based on the lawsuits in the analysis. Such a record is typical of Republican appointees on federal appeals courts in discrimination cases, the area of the law in which national studies show GOP-appointed judges differ most from their Democratic-appointed counterparts.


Alito has been less sympathetic to employees who claim to have been discriminated against on the basis of race, sex, age or disability, siding squarely with them in just three of 15 such cases in the analysis. In those and other discrimination cases, his voting pattern is comparable to the typical Republican-appointed judge.


His treatment of immigration issues — siding one time in eight squarely with immigrants who were trying to win asylum or block their deportation — makes Alito less sympathetic to immigrants than most Republican appointees. At a time when other circuit judges nationwide have criticized as too harsh the reasoning and conduct of the Board of Immigration Appeals, Alito has displayed “almost total deference” to the board, said Owen M. Fiss, a Yale Law School professor who, with 21 Yale faculty and students, has analyzed the more than 400 published opinions Alito has written.

In the 1994 Tipu v. Immigration and Naturalization Service , two judges with whom he heard the case — both GOP appointees — threw out a deportation order against a Pakistani immigrant convicted on a drug conspiracy charge. The top administrative board that considers immigrants’ appeals, they reasoned, had made mistakes, ignoring that Mohammed Zafar Tipu had played a minor role in the conspiracy, received a high school degree while serving a light prison sentence and cared for an ailing brother.

Alito wanted to uphold the deportation. “The majority has wandered well beyond the limited scope of appellate review that we are permitted,” he wrote in his dissent. “Whatever else one may think about [the immigration board’s] decision, it was not arbitrary, irrational or contrary to law.”

Last year, the 3rd Circuit blocked the deportation of a Korean couple, longtime residents of the United States who were convicted of a tax violation, concluding that the crime was not an “aggravated felony” that required them to be removed. Alito, in a dissent, gave a lengthy interpretation of what he believed Congress had in mind when it wrote a section of federal immigration law — and the majority chided him, writing that a judge should reach decisions “unaided by speculation.”