Hard to get much worse...

Yes it's true, even among the potential disasters, Alito couldn't be a worse choice. He is a conservative activist who doesn't even share Scalia's beliefs in the criminal context. Why? A quick look at Alito's bio should case fear and loathing among hardened defenders everywhere. Guess how he spent his entire pre-judicial career? You got it, as a prosecutor.


Assistant U.S. attorney, District of New Jersey, 1977-1981
Assistant to the U.S. solicitor general, U.S. Department of Justice, Washington, DC, 1981-1985
Deputy assistant U.S. attorney general, U.S. Department of Justice, Washington, DC, 1985-1987
U.S. Attorney for the District of New Jersey, 1987-1990

As Professor Berman at Sentencing Law and Policy points out: "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.

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. 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."