Contrast obvious between O'Connor, would-be successor By Joan Biskupic, USA TODAYWASHINGTON - When President Bush nominated federal Judge Samuel Alito on Monday to replace Supreme Court Justice Sandra Day O'Connor, the potential for change on the high court was clear.

A man whose record suggests that he might not favor abortion rights — and that he would have a narrow view of protections against sex discrimination — was tapped to take over for a woman who has been a key vote for abortion rights and who has generally been sympathetic to such discrimination claims.

Alito's nomination also called attention to O'Connor's special place in U.S. history as the nation's first female justice — and to the fact that if Alito is confirmed by the Senate, there will be only one woman on the nine-member court, Clinton appointee Ruth Bader Ginsburg.

That's why the departure of O'Connor — one of six justices on the current court who have backed abortion rights — is virtually certain to make abortion, and women's rights in general, a focus of Alito's confirmation hearings in the Senate.

During the hearings, Alito will be confronted not just with skeptical Democrats' questions about his judicial record, but also with the specter of replacing a historic figure in O'Connor, who has said that she believed her appointment by President Reagan in 1981 opened doors for other professional women.

"My appointment has probably done more to give women confidence in true equal opportunity than a thousand speeches," O'Connor wrote to Reagan after her investiture.

Much of the talk about Alito's record on the 3rd U.S. Circuit Court of Appeals has concerned his opinion in a 1991 case in which he favored a Pennsylvania law that required women to tell their husbands before having an abortion. When that case arrived at the Supreme Court, O'Connor helped craft an opinion that struck down the law as an "undue burden" on a woman's right to end a pregnancy.

During his 15 years on the bench, Alito has written or joined several opinions in sex-bias lawsuits. He often has favored a high bar for workers who have sought jury trials for alleged discrimination.

Many of the discrimination cases Alito has heard fell under Title VII of the 1964 Civil Rights Act, which protects against job discrimination based on sex and race. In a case involving a female hotel worker who made a claim of sexual harassment and then was demoted, a majority of the 3rd Circuit reversed a lower court's decision favoring the hotel. It said the woman had established enough of a case to bring her claim before a jury. Alito dissented, saying there should be a greater burden placed on workers who make such claims.

In a separate case involving another hotel worker, Alito dissented from a ruling that favored an African-American woman who claimed discrimination at work. The 3rd Circuit's majority said Title VII "would be eviscerated" under Alito's reasoning.

In another case, Alito wrote for a unanimous three-judge panel that the federal Family and Medical Leave Act (FMLA), which requires employers to give workers time off for family emergencies, did not give state workers a right to sue for money damages when they were denied time off. Alito noted that Congress had found that it was important for parents to attend to emergencies but it did not lift states' usual immunity from such lawsuits.

When the same legal question came to the Supreme Court, the majority — including O'Connor — said the FMLA allowed state workers to sue their employers.

In 1992, Alito was in the majority when the 3rd Circuit ruled against two girls in a high school class who were sexually molested by boys. The girls brought a civil rights case against the school district. The court's majority wrote, "No one could help but be shocked by the factual allegations in this case," but it said Supreme Court precedent protected school officials from liability. Dissenting judges said the majority was too narrowly reading precedent.

Some critics of Alito's nomination question why Bush chose a white male (he would be the current court's seventh) rather than a woman or a minority. "This is a step back," said Marcia Greenberger of the National Women's Law Center. "Instead of seeing more diversity (on the court) at a time of increasing diversity in the country ... we're seeing less."

However, polls suggest that most Americans did not think it was crucial for Bush to nominate another woman. In a recent USA TODAY/CNN/Gallup Poll, 15% of the respondents said it was "essential" to do so, 33% said it was a "good idea; not essential," and 49% said it "doesn't matter."

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