During a discussion on the November 5 edition of Fox News Watch about "subtle bigotry" in the coverage of Judge Samuel A. Alito Jr.'s Supreme Court nomination, Newsday columnist James Pinkerton said that "the creation of the word 'Scalito' as a ... version of [Justice Antonin] Scalia" was evidence of "an anti-Catholic, also anti-Italian bias in the media," a point with which Fox News host Eric Burns appeared to agree. Pinkerton's comments echoed an October 31 posting on the Drudge Report website, which said that Alito "ha[d] been nicknamed by the mainstream media 'Scalito' " and that repeated media usage of that nickname constituted a "wave of racial discrimination." In fact, the nickname has been in news reports since at least 1992, when it was cited in a National Law Journal article, a reference to apparent similarities between Alito and conservative Supreme Court Justice Antonin Scalia. The December 1992 National Law Journal article attributed the nickname to "lawyers" who reportedly described Alito as "among the most conservative of the new crop [of judges on the Third Circuit]" and "exceptionally bright, but much more of an ideologue than most of his colleagues." The article included no reference to Alito's ethnicity.
After fellow Fox News Watch panelist and media writer Neal Gabler responded that Pinkerton's assertion about the "Scalito" nickname's ethnic bigotry was a "Republican talking point," Pinkerton said, "I think whoever said it first made an ethnic slur ... imagine fusing, say, [Justice Stephen] Breyer and [Justice Ruth Bader] Ginsburg's names together, or if there had been two black justices -- that people would be screaming anti-Semitism or racism. And I think legitimately. And I think they did that on the Italian thing, and I think it was wrong." Pinkerton added, "I'm glad to see the MRC, Media Research Center, came out against them on that."
On November 3, MRC issued a press release accusing the Associated Press and National Public Radio (NPR) of "anti-Catholic attacks." The press release criticized reports by AP and NPR that noted that, if confirmed, Alito would be the fifth Catholic justice currently sitting on the Supreme Court, but it made no mention that Alito had been called "Scalito," nor of his ethnicity.
Pinkerton's comments echoed an October 31 unsourced posting on the Drudge Report, headlined "Media/ DNC [Democratic National Committee] nickname 'Scalito' seen as ethnically insensitive." The post claimed that "because of Alito's conservative and Italian-American background, [Alito] is [sic] often been compared to Supreme Court Justice Antonin Scalia, and has been nicknamed by the mainstream media 'Scalito' ":
Before Judge Samuel Alito was even officially announced as President Bush's next Supreme Court nominee, he met a wave of racial discrimination from numerous corners of the mainstream media and the Democrat Party. Because of Judge Alito's conservative and Italian-American background he is [sic] often been compared to Supreme Court Justice Antonin Scalia, and has been nicknamed by the mainstream media "Scalito."
This morning, on CNN's AMERICAN MORNING host Soledad O'Brien said, "we've heard the nickname 'Scalito'.... which is of course combining the Scalia, Justice Scalia and Alito. Let's talk a little bit about their similarities."
On CBS'EARLY SHOW host Harry Smith claimed: "[Our next guest] will be on to talk about Alito, who some people are calling 'Scalito' because of his close resemblance to Antonin Scalia at least ideologically."
Meanwhile, the Democratic National Committee sent out talking points this morning titled: "Judge 'Scalito' Has Long History Of States Rights, Anti-Civil Rights, And Anti-Immigrant Rulings." More from the DNC's anti-Italian American talkers: "Alito is often referred to as 'Judge Scalito' because of his adherence to Supreme Court Justice Antonin Scalia's right-wing judicial philosophy."
One outraged Republican strategist claimed, "If Alito were a liberal there would be no way Democrats and Washington's media elite would use such a [sic] ethnically insensitive nickname. Italian-Americans should not have to face these types of derogatory racial slurs in 21st century America."
But the nickname "Scalito" long predates Alito's nomination to the Supreme Court, having appeared in news reports since at least 1992. The earliest reference to "Scalito" in the Nexis database is a December 7, 1992, National Law Journal article:
Among the most conservative of the new crop, according to lawyers who practice before the circuit, is Judge Samuel A. Alito Jr., former U.S. attorney for New Jersey and a former assistant solicitor general in the Reagan administration. Judge Alito is described by lawyers as exceptionally bright, but much more of an ideologue than most of his colleagues. It's a trait that has led some to nickname him "Scalito," after the acerbic Supreme Court Justice Antonin Soalia [sic].
Shannon P. Duffy, U.S. court correspondent for the law journal The Legal Intelligencer, has apparently claimed responsibility for the moniker. In a November 23, 2004, posting on "The Buck Stops Here," the weblog of lawyer Stuart Buck, a commenter who claimed to be Duffy wrote:
I'm the one who nick-named Alito "Scalito." The [December 7, 1992] National Law Journal [NLJ] article you [Buck] refer to was written by Joseph Slobodzian. At the time, he and I were both reporters covering the federal courthouse in Philadelphia -- he for the Philadelphia Inquirer and I for the Legal Intelligencer. He did some freelancing for NLJ and we had several discussions at the time he wrote that article. I knew as soon as it was published that my nickname would stick, but I never would have guessed just how popular it would become.
However, in a March 3, 2003, Legal Intelligencer profile of Alito, Duffy did not claim a role in the nickname's creation, attributing it, as Slobodzian's 1992 article did, to "lawyers." Duffy described "Scalito" as an expression of Alito's conservative judicial record:
Some lawyers have a nickname for federal appeals Judge Samuel A. Alito Jr. that captures two things at once - his particular brand of legal conservatism and a recognition that his credentials are strong enough to put him on any Republican president's short list for the U.S. Supreme Court.
They call the judge "Scalito."
Roughly translated, the nickname means "Little Scalia," suggesting that Alito, a judge on the 3rd U.S. Circuit Court of Appeals, has modeled himself after Supreme Court Justice Antonin Scalia.
With Alito in President Bush's sights as a possible high court nominee, the question is whether he can both overcome the nickname and somehow live up to it.
In some ways, the Scalito moniker hits the mark. In his 13 years on the 3rd Circuit, Alito has earned his stripes as a strong and intelligent voice on the growing conservative wing of a court once considered among the country's most liberal.
As with Scalia, lawyers say that Alito's vote is easy to predict in highly charged cases.
But where the nickname misses is temperament, or what some might call personality. Personality-wise, on the bench and in person, Alito is no Scalia.
Though he's a frequent dissenter and not at all afraid to disagree with his colleagues, Alito's opinions are usually devoid of passion. And his tone during oral arguments is probing but always polite.
According to Nexis, no news reports mentioned the "Scalito" nickname again until 2000. Since then, however, it has repeatedly appeared in reports on Alito's potential as a Bush Supreme Court nominee:
- A May 15, 2000, U.S. News & World Report article on how the 2000 presidential election may affect the Supreme Court referred to Alito as: "[A] federal appellate judge in Newark, N.J., whose conservative pedigree earned him the nickname 'Scalito.' "
- A May 26, 2000, Houston Chronicle listing of possible Supreme Court nominees if then-Texas Gov. George W. Bush were elected president: "Judge Samuel Alito Jr., 50, of the 3rd U.S. Circuit Court of Appeals. Alito, of Newark, N.J., has been called 'Scalito' for a judicial philosophy akin to that of Justice Antonin Scalia, whom the Texas governor has praised."
- A September 21, 2002, Associated Press listing of possible Supreme Court nominees: "Samuel A. Alito Jr., named to the Philadelphia-based 3rd U.S. Court of Appeals by Bush's father. Well-known in conservative legal circles, he is sometimes called 'Scalito' for the similarities between his views and those of Scalia."
- A December 27, 2002, New York Times article on a possible fight over a Supreme Court vacancy: "Other possibilities, officials say, include Judge Alito, who was a clerk for Justice Scalia [sic: he did not clerk for Justice Scalia, according to a Times correction of this article] and is nicknamed Scalito by some lawyers but who is seen as a far less confrontational figure."
- A June 14, 2003, National Journal cover story on the "most talked-about candidates" for the Supreme Court noted this "minus" for an Alito nomination: "Liberals have signaled their intention to fight any Alito nomination, calling him 'Scalito' because his jurisprudence resembles that of Scalia, although he is more mild-mannered on the bench and less flamboyant."
- An October 25, 2004, New Jersey Lawyer profile of Alito: "Alito, who is in his 15th year on the bench, generally has been viewed as a jurist with a decidedly conservative bent. In fact, he has been dubbed by some as 'Scalia lite' and 'Scalito' because he shares the judicial philosophy and the sharp -- sometimes scathing -- writing style employed by Justice Antonin Scalia."
Later on in the Fox News Watch segment, Pinkerton referred to Alito as "Scalito" but immediately called this a "mistake," saying that he "live[s] in fear of saying Alito and saying -- confusing him with the former mayor of San Francisco, [Joseph] Alioto. But anyway -- so we have -- we do make -- all make mistakes. But we should apologize for them, as I will, for that mistake."
From the November 5 edition of Fox News' Fox News Watch:
CAL THOMAS (panelist and syndicated columnist): But there's something else underlying this that I think -- a subtle bigotry that I've seen not only in the AP and NPR, but in some other places. Judge Alito is a Catholic, and there are a number of media outlets who are not so subtly saying or carrying without challenging certain people saying, "Gee, another Catholic on the Supreme Court? That would make five." As if there is something wrong with that.
PINKERTON: I agree with that, that there has been an anti-Catholic, also anti-Italian bias in the media. I think that the creation of the word "Scalito" as a --
PINKERTON: -- version of Scalia.
GABLER: Let me just -- may I just add here --
PINKERTON: Can I finish what I was saying?
GABLER: That was a Republican talking point, what you're giving them.
PINKERTON: Actually it -- but it's been picked up by lots of places. And I think whoever said it first made an ethnic slur, and for some reason -- imagine fusing, say, Breyer and Ginsburg's names together, or if there had been two black justices -- that people would be screaming anti-Semitism or racism. And I think legitimately. And I think they did that on the Italian thing, and I think it was wrong, and I'm glad to see the MRC, Media Research Center, came out against them on that.
PINKERTON: Well, the confusion -- and Diane Sawyer on ABC was one of the worst at this -- is to associate Scalito --
GABLER: Holy cow!
PINKERTON: It just shows you how.
GABLER: There was anti-Italian sentiment right there in that chair.
BURNS: He's been brainwashed. He's off the hook.
GABLER: Oh, absolutely.
PINKERTON: I live in fear of saying Alito and saying -- confusing him with the former mayor of San Francisco, Alioto. But anyway -- so we have -- we do make -- all make mistakes. But we should apologize for them, as I will, for that mistake.