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January
23, 2006
The Nation
The
Case Against Alito
With Judge Samuel
Alito, the Senate Judiciary Committee faces its most consequential Supreme Court
confirmation hearing in a generation. Not since Robert Bork has the Senate encountered
a nominee whose long record and fully articulated views so consistently challenge
decades of progress on privacy, civil rights and control of corporations. And
never in memory has a single nomination so threatened to redirect the Court as
Alito's, which would replace the pragmatically conservative swing-voter Sandra
Day O'Connor. Alito's opening statement before the Judiciary Committee is January
9, but his true testimony consists of fifteen years of rulings on issues from
abortion to school prayer to immigration. That record demonstrates that Alito
is at odds with the interests of ordinary Americans.
Supreme Court nominees get, and usually deserve, much benefit of the doubt. But
with Alito, the doubt is all of the nominee's making, and has only grown with
revelations of his Reagan-era memos. As an ambitious Reagan Administration lawyer,
he boasted in a now-famous 1985 job application of his conviction that Roe v.
Wade should be overturned; opposed the historic one-person, one-vote decision
of the Warren Court; and waved like a badge of honor his membership in a far-right
Princeton alumni network notorious for its hostility to admitting women and African-Americans.
Alito's defense of Nixon-era officials implicated in illegal wiretaps makes clear--in
light of today's NSA wiretap scandal--that the Bush Administration's motives in
Alito's nomination extend well beyond a token nod to social conservatives.
Nothing in Alito's hundreds of federal appeals court rulings in the years since
suggests any mellowing of those fundamental commitments. After a careful study,
University of Chicago law professor Cass Sunstein described Alito's record of
appeals court dissents as "stunning. Ninety-one percent of Alito's dissents
take positions more conservative than his colleagues...including colleagues appointed
by Presidents Bush and Reagan." A new study by the Alliance for Justice makes
the case even more emphatically: In so-called split decisions--the most difficult
cases, which divided the appeals court--"Alito has frequently gone to the
right of even his Republican-appointed colleagues to find against individuals
claiming that government officials or corporations violated the law." He
has argued strenuously in favor of the strip search of a 10-year-old girl not
accused of criminal wrongdoing; supported warrantless surveillance of a criminal
suspect when other courts had disallowed the practice; and tried to strip his
fellow judges of the power to grant habeas corpus rights to undocumented immigrants,
a position pointedly repudiated by the Supreme Court.
This is big-government jurisprudence with a vengeance. The only exception to Alito's
big-government activism comes with the regulation of business. There he seems
to be on a one-man crusade to undo decades of regulation, most clearly displayed
in a still-astounding dissent arguing that the federal ban on machine guns violates
the Constitution's commerce clause--a radical position (exceeding even Chief Justice
John Roberts's famously constricted view of the Endangered Species Act) that would
shred not only gun-control statutes but a host of environmental laws and other
Congressional action.
Democrats as well as moderate Republicans have so far played their cards close.
Will the handful of Democratic progressives who voted for the confirmation of
Roberts--including Russell Feingold and Patrick Leahy--see themselves as free
to oppose a nominee without Roberts's discretion about his own commitments? Will
the party discipline so often exercised by minority leader Harry Reid extend to
what is certain to be an emotional confirmation fight? Will civil-libertarian
Republicans like Arlen Specter recognize in Alito not just a threat to Roe v.
Wade but to the fundamental balance of executive and legislative power? And what
about the "Gang of 14," the Republican and Democratic senators like
Joe Lieberman and John McCain who last year agreed to avoid judicial filibusters
except in rare circumstances? They should recall that a key principle uniting
them then was that the White House should consult the Senate on judicial appointments;
on Alito, the White House consulted no one but the extreme right.
The White House is banking on fear that if this second nominee goes down, Bush
will nominate someone even worse. This argument ignores history: When in 1969-70
President Nixon nominated and lost both Clement Haynsworth and Harrold Carswell,
the result was not "someone worse" but the pragmatic, humane Judge Harry
Blackmun, who later wrote Roe v. Wade; when Bork was Borked, his replacement was
Anthony Kennedy, who in 1992 joined fellow Reagan nominee O'Connor to reaffirm
Roe. Alito defeatism also ignores today's political climate: As the midterm elections
draw closer, as the Iraq War scandals deepen, Senate Republicans are falling over
one another to distance themselves from the Administration and the far right.
Alito will undoubtedly try to backpedal from his unambiguous track record. That
only makes more urgent the case against the real Alito revealed in his memos and
rulings. The American people are not ready for a nominee so profoundly committed
to intrusive government, whether that means right-to-lifers intruding on sexual
privacy, religious fanatics intruding in the science classroom or the NSA intruding
on phone calls without a warrant. Far from being a mainstream conservative, Judge
Alito represents a malignant future; his entire biography suggests he will swing
the Supreme Court toward a right-wing authoritarianism that's out of step with
the public and the Constitution.
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