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Washington focuses on opposites: Abramoff and Alito

By David Broder

WASHINGTON

The two names uppermost on the minds of official Washington at this moment represent polar extremes of reputation. Disgraced lobbyist Jack Abramoff is an admitted felon and certified sleaze. Supreme Court nominee Samuel Alito is an upright, ethical and highly respected jurist, as modest in his habits as Abramoff is flamboyant.

Abramoff's operations have been thoroughly exposed by the reporting of my colleagues at The Washington Post and in the plea agreements he signed with federal prosecutors, sending tremors of anxiety through the ranks of congressional Republicans and a few Democrats as well.

Alito's work, as a member of the Philadelphia-based 3rd U.S. Circuit Court of Appeals, will become much more familiar to the nation when the Senate Judiciary Committee holds its hearings this week on his nomination to succeed Justice Sandra Day O'Connor.

The question that confronts the senators is whether Alito has an agenda that is every bit as well-defined as that for which the Indian tribes and others hired Abramoff - but vastly larger in significance.

The goals for which Abramoff connived were petty - a gambling license here, a contract there. The issues with which Alito has wrestled in his 15 years on the federal bench are much more consequential: the relationship between individuals and the state, the regulatory authority of the federal government, the balance of power between the president and Congress, the protection of civil rights.

On all of these issues, Alito has compiled a record which can be read - and is read by many legal scholars - as reflecting a consistent and reasoned preference for governmental authority, especially presidential power, and a restrictive view of individual rights.

University of Chicago law professor Cass Sunstein, for example, concluded a study of Alito's dissents with the observation that "there is a good chance that Alito will be with Justices (Antonin) Scalia and (Clarence) Thomas in their attempts to move constitutional law in some respects to what it was a long time ago."

If that reading is correct, then his confirmation as O'Connor's successor would shift the current Supreme Court balance decisively to the right.

For senators who share President Bush's often-expressed desire to see that happen, the confirmation of Alito presents no conflict. Moreover, his "highly qualified" rating from the American Bar Association underlines the near-universal belief that his intellect and temperament commend him for the bench.

But others face a harder task in weighing the Alito nomination. They may well ask: At a time when the administration is asserting a broad right to conduct warrantless wiretaps of Americans' phone calls, do we really need a Supreme Court that takes an expansionist view of presidential authority? In an era of corporate corruption, do we want to restrict consumers' and workers' ability to turn to the courts for help?

But the evidence on Alito's motivations is not one-sided. At the suggestion of White House allies, I spoke with two of his former colleagues who presented compelling personal testimony that he is not a man driven by a personal or ideological agenda.

Robert Del Tufo was the Jimmy Carter-appointed U.S. attorney in New Jersey who employed Alito in the 1970s to handle difficult appellate cases.

"There is no ideological bent that I can perceive," he told me. "He is a balanced human being with great sensitivity for human values and a scholar who analyzes the law and always stays with it."

Susan Sullivan of San Francisco clerked for Alito during the year he wrote his controversial Casey case opinion, upholding portions of a Pennsylvania statute restricting abortion, a decision later overturned by the Supreme Court.

Sullivan describes herself as "a social progressive who is pro-choice and anti-death penalty," and says, "In general I would react with suspicion to any nominee of this administration. But having worked with him, I know he does not work toward a specific result. He is not intent on advancing his own agenda. He approaches cases in a very impartial way."

When John Roberts came before the Judiciary Committee for confirmation as chief justice, with barely more than two years of judicial opinions behind him, he was thoroughly believable in disclaiming any particular agenda of his own. All Republicans and half the Democrats saw him, as I did, as an embodiment of judicial impartiality.

Maybe Alito can establish a similar claim for himself in these hearings. But he has a lot of convincing to do.

David Broder is a columnist for the Washington Post. E-mail him at davidbroder@washpost.com. His column appears on Thursday and Sunday.