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A Tale of Two Justices

The "Scalito" slogan is a joke that masks more than it reveals.

10:50 AM, Oct 31, 2005 • By MATTHEW CONTINETTI
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THE ONE THING people seem to know for sure about Samuel Alito is his nickname: "Scalito." The name is meant to denote Alito's similarities to associate Supreme Court justice Antonin Scalia, whom the Senate confirmed, on Ronald Reagan's urging, to the Court in 1986. It's a catchy moniker, and rolls off the tongue, and may, if the media takes its cues from the press release manufacturers at the Democratic National Committee, become the catchphrase of Alito's upcoming Senate confirmation hearings.

Which would be a shame. The nickname is misleading. The two men may share a vowel at the end of their last name. But, needless to say, they're different people.

I, too, in case you haven't noticed, have a vowel at the end of my name, and so I find myself obliged, as a strange point of ethnic pride, to point out Scalia and Alito's differences. From what I can tell, the two men have three things in common. Both are Italian. Both are conservative. And both are known for penning dissents.

This is where the similarity ends. There's the difference in age: Scalia, 69, is from a different generation than Alito, who was born in 1950. There's the difference in education: Scalia is a graduate of Georgetown and Harvard; Alito, Princeton and Yale. There's the difference in résumé: Though he served in both the Nixon and Ford administrations, when he was nominated by Reagan, Scalia was primarily known as a legal scholar who had taught at the University of Virginia, the University of Chicago, Georgetown, and Stanford. Alito's background in government is deeper than Scalia's, his ascent to the Court faster. A U.S. attorney in the late 1970s, he was a fixture in the Reagan administration, serving in both in the Solicitor General's office and the Office of Legal Council before his appointment to the Third Circuit Court of Appeals in 1990.

There's the possible difference in legal philosophy. Scalia is best known for his originalist, textualist approach to the law, as outlined in his manifesto A Matter of Interpretation. Alito, a strict constructionist, seems more open to various approaches to the law. And there's the difference in judicial demeanor: On the bench Scalia can be taciturn, biting, his penetrating mind burrowing immediately into the illogic of an attorney's position. Alito, we are told, is more deferential; his knife is less pointed.

Where did the nickname "Scalito" come from? It is hard to say. I searched the Lexis-Nexis database and found the first reference to "Scalito" in the December 7, 1992 National Law Journal. "Judge Alito is described by lawyers as exceptionally bright," reported Joseph A. Slobodzian, "but much more of an ideologue than most of his colleagues. It's a trait that as led some to nickname him 'Scalito' after the acerbic Supreme Court Justice." References to Alito as "Scalito" have always been in the passive tense: "some say," "has been," "is referred to." No one, until now, seems to have gone on record with the name.

They probably shouldn't. "Scalito" is a slogan; a joke of a name that masks more than it reveals. It folds one man's record--Alito's--into the liberal caricature of another--Scalia. And it reduces Alito to his ethnicity and his conservatism.

Almost forgot: There's one other thing Scalia and Alito have in common. Both were appointed by Republican presidents to courts famous for issuing liberal rulings. As a consequence both judges became famous for dissenting in a reasoned and well-written manner.

Of course, if President Bush has his way and Alito becomes the second Italian American in 20 years to sit on the U.S. Supreme Court, the two judges may not be penning dissents for long.

Matthew Continetti is a staff writer at The Weekly Standard.