Some Jewish analysts see shades of gray in Alito

washington | The long paper trail of hard-hitting conservative opinions that Judge Samuel Alito has left in his wake is perfect fodder for left vs. right, black-and-white confirmation battle.

For Jewish groups, however, the clarity of Alito’s record fades to gray.

President Bush’s new nominee to the U.S. Supreme Court has upheld religious freedoms that the entire Jewish community cherishes, on one occasion strongly defending the right of a Jewish employee to Sabbath observance. Yet his views on the establishment of religion as well as abortion hew to a tough conservative line that much of the community repudiates.

“He wrote a very important opinion in expanding what little is left of the free-exercise clause,” said Marc Stern, co-director of the legal department of the American Jewish Congress, referring to the constitutional guarantee of free religious practice.

On the other hand, he said, in several cases dealing with the constitutional prohibition against the establishment of a state religion, Alito indicated a leaning in favor of religious speakers “to the exclusion of those who might not want to listen.”

Bush announced the nomination of Alito, 55, on Monday, Oct. 31, just days after Harriet Miers, his White House counsel, withdrew her name.

Alito’s 15 years on the 3rd U.S. Circuit Court of Appeals, based in Philadelphia, establishes a strong constitutional and conservative record. Social conservatives who vigorously opposed Miers’ nomination immediately hailed the decision.

Just as predictably, liberal groups mounted an immediate battle.

National Jewish groups at times have been pivotal in joining liberals in opposing judicial candidates; the White House was eager to get out the message that Alito was safe for the Jews.

Legal scholars say Alito substantially expanded First Amendment rights in 1999 when he ruled that the Newark, N.J. police department violated the rights of Muslim officers by banning them from wearing beards, though it allowed an exception for health reasons.

Another Alito opinion had a more immediate impact on Jewish observance. In Abramson v. William Patterson College in 2001, the court considered the case of Gertrude Abramson, who sued the New Jersey institution in 1995, claiming that it violated an earlier agreement to allow her to take off Jewish holidays. Abramson also alleged a pattern of harassment, including meetings scheduled on Shabbat.

The court ruled in Abramson’s favor, but Alito’s separate concurrence was even stronger, citing favorably an amicus brief filed by the Orthodox Union.

Strong opinions are typical of Alito, said Jeffrey Wasserstein, his former law clerk.

“He is a Catholic, but his sensitivity to non-majority religions was quite interesting to watch, not what one would expect from someone being tarred by the press as extraordinarily conservative,” said Wasserstein, an observant Jew who served with Alito from 1997 to 1998.

Wasserstein insisted that Alito did not come to cases with preconceptions, but liberal groups and their allies in the Jewish community were already fretting at a body of work that suggests otherwise. Of special concern are two cases in which Alito upheld the right of New Jersey towns to display Christmas-season creches.

Ron Kampeas

Ron Kampeas is the D.C. bureau chief at the Jewish Telegraphic Agency.