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Fri, March 22

There's no way to tell how Alito will rule on abortion

President Bush nominated Samuel Alito Jr. to the Supreme Court on Halloween morning, and it was soon clear he wouldn't need a costume to go trick-or-treating: His critics already had made him unrecognizable.

What did we "learn" about this obscure federal appeals court judge? We heard that he is a hard-edged ideologue in the mold of Justice Antonin Scalia, so much so that he's been nicknamed "Scalito." We found out that he is against abortion rights ­ a CBS News report said "he has favored limits on abortion, most notably arguing that women seeking abortions should be required to inform their husbands." We found out he is likely to, in the words of National Public Radio correspondent Nina Totenberg, "eviscerate" the court's 1973 decision in Roe v. Wade.

Some truth resides in these claims, just as some Vitamin A is in a box of Cap'n Crunch, but it's far from the main ingredient.

Like Scalia, Alito is an Italian-American from New Jersey, but that doesn't make him a clone of the caustic, free-swinging justice. Even liberal experts dismiss that comparison. Cass Sunstein of the University of Chicago, author of "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America," noted that unlike Scalia, "Alito avoids theoretically ambitious claims." Sunstein also praised his opinions as "measured, low-key ... more than competent, unfailingly respectful and plausible."

The issue that has taken center stage is abortion ­ even though no one has yet turned up any public statement by the nominee to indicate whether he is for it, against it, or perfectly indifferent. But his detractors assume he hates it with a burning passion.

Why? Because, as a judge on the 3rd U.S. Circuit Court of Appeals, Alito wrote an opinion that would have upheld a law requiring married women to affirm they had notified their husbands before getting an abortion. That dissent allegedly places him well outside the mainstream of legal and popular opinion.

Even if he thinks in his heart of hearts that the law was a good idea, he's not exactly on the lunatic fringe: A 2003 Gallup poll found that 72 percent of Americans support spousal notification requirements.

But to say that Alito himself thinks women should have to inform their husbands before having an abortion, merely because he voted to uphold that law, is ridiculous ­ like saying that because the Supreme Court struck down laws against flag desecration, it must hate Old Glory.

In the end, Alito's record implies that whatever his view of abortion as a matter of morality or policy, it won't affect his view of it as a matter of constitutional law. That approach may not please activists who care only about getting their way. But it suggests he grasps a fundamental truth: What courts decide is less important than how they decide it.


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