Serious Justice Alito buzz

Tom Goldstein, who was the first to shine a spotlight on John Roberts as a possible Chief Justice, now has this post at SCOTUSblog talking up Sam Alito as the new nominee.  Likewise, posts here and here at confirmthem are suggesting an Alito nomination is nearly a done deal.

A Justice Alito intrigues me at many levels.  Of course, looking at this official bio, the first thing I notice (besides the fact he is a fellow Princetonian) is that Judge Alito’s entire pre-judicial career was working in the criminal law arena with six years in the US Attorney’s Office in New Jersey and six years in the Justice Department.  Notably, this July 2005 US News profile of Judge Alito suggests his background as a prosecutor shapes his jurisprudence:

Alito’s conservative stripes are equally evident in criminal law.  Lawrence Lustberg, a New Jersey criminal defense lawyer who has known Alito since 1981 and tried cases before him on the Third Circuit, describes him as “an activist conservatist judge” who is tough on crime and narrowly construes prisoners’ and criminals’ rights.  “He’s very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a Rehnquist as a Scalia trait,” Lustberg says.

Critically, as I have explained in posts here and here and here, the difference between being in the mold of Chief Justice Rehnquist and Justice Scalia for the Apprendi–Blakely–Booker line of cases is quite pronounced and consequential.  The great recent article by Ward Farnsworth about the voting patterns of SCOTUS Justices in criminal cases reinforces this difference.

Because of Alito’s criminal law background, the pre-hearing conversation and the hearing themselves would likely focus a lot on criminal justice issues (unlike what we have seen with Miers and with Roberts).  Regardless of one’s view on criminal justice issues, I think it is important and valuable for these issues to be a larger part of the public conversation about the work of the High Court and potential Justices.

UPDATE: Over at Volokh, Paul Rosenzweig here astutely notes that Judge Alito is part of the  Constitution Project’s bipartisan group, chaired by Ed Meese and Phil Heyman, looking at the post-Booker world.  Interesting…

ANOTHER UPDATE:  Amy Howe at SCOTUSblog reports here that we are not getting a nominee today.