But one group is breathing a big sigh of relief: Corporate America. Of the dozen or so names on Bush's rumored short list of high court candidates, Alito ranked near the top for the boardroom set.
In the 800-plus opinions he has penned during his 15 years as a federal judge, Alito consistently has come down on the side of limiting corporate liability, limiting employee rights, and limiting federal regulation. "He would be a liability restrainer," says Stan Anderson, legal-affairs lobbyist for the U.S. Chamber of Commerce.
Philosophically, Alito is described as a strict constructionist on constitutional law, sticking to the text of the law and the intent of legislators at the time the law was written. That's good news for social conservatives, who had drawn knives against Bush's previous nominee for the O'Connor seat, White House counsel Harriet Miers. Miers withdrew from consideration on Oct. 27, after the conservative punditocracy skewered her as a legal lightweight with a skimpy record.
"SCALITO"? And Alito stands in contrast to John Roberts, who tried to dispel notions that he was a strict constructionist during his Senate confirmation hearings to Chief Justice of the Supreme Court (see BW Online, 9/14/05, "Roberts Robes Himself in Pragmatism").
Although he has never been in business, Alito's long record sets off few alarm bells with corporate groups. After graduating from Yale Law School in 1975, he spent eight years in the Army Reserve. He clerked for Judge Leonard Garth on the U.S. Court of Appeals for the Third Circuit, a court he would join more than a decade later, before serving as Assistant U.S. Attorney for the District of New Jersey. He joined the Reagan Administration's Justice Dept. in 1981, before moving back to New Jersey in 1987 to serve as U.S. Attorney.
For conservatives, Alito's official résumé is enhanced by his membership in the Federalist Society, a club of lawyers and law students that espouses a limited role for the nation's judges. Indeed, the 55-year-old judge has drawn such devotion from the conservative Right that he's earned the nickname "Scalito," a reference to Justice Antonin Scalia, another darling of social conservatives.
MINORITY OPINIONS. In truth, Alito probably hews closer to the philosophy of Justice Clarence Thomas than that of Scalia. He appears to give less deference to precedent than Scalia might, and more often takes critical aim at Congress for what he considers to be overreaching.
Business would likely benefit from the Alito approach. The judge wins stellar marks from the U.S. Chamber of Commerce, which vetted a handful of would-be nominees based on their records on legal liability, employment law, and the like.
As a judge, Alito has written numerous minority opinions making the case for setting a higher bar on claims of racial and sexual discrimination in the workplace. He issued a landmark decision upholding the free-speech rights and freedom of association of business trade groups in 1995's Pfizer v. Giles, and he backed commercial-speech rights in Pitt News v. Pappert.
OVERTURNED BY THE SUPREMES. In one case of key interest to business, Alito as a circuit judge claimed that the federal government could not apply the Family & Medical Leave Act to state employees. In Chittister v. Dept. of Community & Economic Development, he upheld a lower court ruling backing the state of Pennsylvania, taking Congress to task for enacting the Family & Medical Leave Act. This 1993 federal law, which requires employers to provide employees with 12 weeks of unpaid leave for various health or family reasons, including the birth of a child, was an unconstitutional abrogation of states' rights, Alito wrote.
Lawmakers who penned the law wanted to rectify what they considered "inadequate job security" for working mothers, who often bear the brunt of child-rearing responsibilities. But Alito disputed that reasoning. "Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause," he wrote in his Chittister opinion.
That was in 2000. Three years later, a 6-3 Supreme Court, with Chief Justice William Rehnquist and O'Connor in the majority, took the opposite view in Nevada Dept. of Human Resources v. Hibbs, upholding the right of Congress to mandate that states give their workers the same benefits the federal act grants to private-sector employees. The effect was to trump Alito's earlier decision.
PAPER TRAIL. In nominating Alito to the high court, Bush is seeking to move past weeks of political unrest surrounding Miers, who was an unknown quantity with an almost-nonexistent record on social issues and a dearth of experience with weighty constitutional questions.
Alito brings a reputation for scholarly insight. But if Miers had too sparse a record to win confirmation, Alito might present the opposite problem. After 15 years on the bench, and more than a decade in federal government, his voluminous writings are sure to arm Democratic opponents with plenty of ammunition for making a case against him.
Instead of quieting the firestorm over the Supreme Court nominees, Bush has simply exchanged one set of complaints for another. By nominating Alito, he has given both the Left and Right the fight they've been waiting for. Business will be watching from the sidelines -- hopeful that Bush can prevail.
Woellert covers legal affairs from BusinessWeek's Washington bureau