Alito's colleagues said he ignored precedent

WASHINGTON -- The Supreme Court nominee, Samuel A. Alito Jr., was criticized twice in recent years by appeals court colleagues who said he ignored established rules when he voted on cases, calling into question assurances from some of Alito's supporters that he would probably respect precedents such as the Roe v. Wade abortion rights decision.

In separate cases involving the deportation of foreigners, Alito sided with the government. In both cases, Alito was outvoted by his colleagues, who accused him of ignoring court precedent.

''We suggest that to read the [law as Alito did] not only guts the statutory standard, but ignores our precedent," the majority said in one of the cases, which involved how much credence to give to an African man's assertion that he would be persecuted if sent home.

The two cases, one in 2003 and the other in 2004, were not the only times colleagues have chided Alito over perceived failures to follow established rules.

They were, however, unusual in the strength of the language used to rebuke him -- especially because judges on the US Court of Appeals for the Third Circuit generally have a reputation for being polite to one another.

The second case, in 2004, involved a Korean couple facing deportation after having filed a fraudulent tax return.

In that matter, the panel's majority accused their ''dissenting colleague" of ignoring ''well-established principles" about how to read statutes.

''It may be that Congress will wish to broaden the categories of aggravated felony to include other or all tax felonies," the majority judges wrote. ''But we must interpret what it has written by well-recognized rules of statutory construction, unaided by speculation."

Adam Ciongoli, a former clerk to Alito who later became counselor to former attorney general John D. Ashcroft, said yesterday that Alito was committed to respecting precedent, except in the most extraordinary circumstances.

''Judge Alito takes the idea of precedent in any context very seriously because he thinks that things like predictability and stability are components of American law and aspects of judicial restraint," Ciongoli said.

Still, Alito colleagues have accused him on a number of occasions of failing to follow precedent. In 1996, for example, the appeals court upheld a federal law outlawing machine guns. Alito filed a dissent, arguing that the law was unconstitutional because Congress had not proved that machine guns were linked to interstate commerce.

''We know of no authority to support such a demand on Congress," the other appeals court judges wrote of Alito's dissent. ''Nothing in [Supreme Court case law] requires either Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute."

And in a 1996 sexual discrimination suit, Alito was the only judge on the appeals court to vote for throwing out the case without a trial. The other 11 judges cited three circuit cases and eight decisions in other jurisdictions that dictated the woman should get her day in court, and accused Alito of misinterpreting precedent.

''The dissent gives no reason why a plaintiff alleging discrimination is not entitled to the real reason for the personnel decision, no matter how uncomfortable the truth may be to the employer," the otherwise unanimous panel complained.

Sean Rushton, the executive director of the conservative Committee for Justice, said yesterday that critics should not read too much into a handful of ''obscure" examples in which Alito had voiced ''good faith" disagreements with more liberal colleagues.

''For a guy who has written a gazillion opinions, this doesn't strike me as evidence of an adventurous, aggressive judicial temperament, because the examples seem like fairly narrow ones," Rushton said.

Legal analysts said there are numerous 5-to-4 Supreme Court precedents that could be reversed if O'Connor were replaced by a more conservative justice who did not feel a strong duty to uphold previous decisions. They cited recent cases involving affirmative action and environmental protection issues.

Abortion rights have been upheld by a 6-to-3 majority, meaning that Alito could not tilt the balance by himself.

But he could join with other justices in applying additional limitations on abortion rights. For example, the Supreme Court voted 5 to 4 in 2000 to strike down a ban on late-term abortions.

Alito's supporters, however, have sought to reassure the public that he would be cautious about overturning prior rulings.

''He has shown great deference to the Supreme Court as a judge on a lower circuit court of appeal," Jan LaRue, general counsel of the Concerned Women for America, a major antiabortion group, said yesterday.

She cited Alito's vote to strike down a ban on certain late-term abortions in New Jersey because it conflicted with the 2000 Supreme Court ruling. And as a circuit court judge, he applied Supreme Court precedents in other cases.

But liberal activists argued that Alito was bound, as a lower court judge, to follow the lead of the Supreme Court. If he were on the high court, they said, Alito would be as free to overturn a Supreme Court precedent as he has been to disregard appeals court precedent.

''There is a big difference between precedent that comes from a court above you and precedent that you have authority to rewrite and ignore," said Elliot Mincberg, general counsel of the liberal People for the American Way.

And LaRue noted that the Supreme Court is free to overturn its own rulings, citing Brown v. Board of Education, the 1954 decision that overruled a six-decade-old case that had upheld segregation.

''It's a myth to conclude that Supreme Court justices are bound by their prior precedents," LaRue said.

''The court has reversed itself numerous times."