Judge Alito: danger on the Supreme Court

By Rabbi Arthur Waskow

In our view, the American public should strongly and immediately oppose the nomination of Judge Alito to the Supreme Court, and should particularly focus energy on the so-called "moderate" Republicans" and "moderate" Democrats whose votes will determine whether Alito is confirmed.

Why do we oppose his nomination? His record of judicial opinions shows that he is a smart, capable, right-wing ideologue. He has supported governmental power when it invades the personal freedoms of human beings and opposed governmental power when it tries to regulate corporations to protect workers, customers, or the environment.

ALL OF THESE ARE RELIGIOUS AND ETHICAL ISSUES. NOTHING is religiously more urgent than action to heal and protect our endangered earth. -- Yet Alito's record already shows he opposes such regulations.

While defending the rights of women and gay people that would be endangered by putting Alito on the Supreme Court, we should make clear these other dangers as well. Women and gay people are not the only Americans - or life-forms -- who will get trampled in the Supreme Court's rush to the right if Alito is confirmed.

We find it deeply inadequate to ask only for more study of Alioto's record, as did the Religious Action Center of Reform Judaism: "The Senate's responsibility to examine thoroughly a nominee's record, work and writings is of paramount importance. For this reason, we call on the Administration to make available all pertinent documents concerning Judge Alito's work and call on the Senate to carefully review that material and fully exercise its powers of advise and consent." The statement took no position on whether to confirm or not.

Judge Alito's opinions are already there for all to see. A stance that made sense in regard to Mr. Bush's previous nomination of a secretive personal crony is puzzling in this quite different situation. A far more adequate response would have been to declare opposition, urge the Senate to make a detailed public exposure of Alito's very right-wing views, and move at once to build a strong grass-roots public opposition.

The right-wing struggle to convince or coerce Senators began even before the nomination was made public. So mainstream Americans must organize as quickly as possible, to oppose the nomination before its approval becomes the "conventional wisdom."

We urge and invite Shalom Report readers to call 202/224-3121, ask for your Senators and make clear your own strong commitment.

We urge groups of clergy and religiously committed laity to call your Senators to arrange meetings.

We also urge you to write letters to the editors of your own newspapers. We are glad to help you express your views. Click here to see how.

And we suggest making clear to your own religious leaders how strongly you feel.

With blessings of shalom,

This is the Alioto record:

1. Community safety: Alito, dissenting in the case of United States v. Rybar, said that Congress does not have the power under the Commerce Clause to restrict the transfer and possession of machine guns at gun shows. In response to Alito's assertion that Congress must make findings or provide empirical evidence of a link between a regulation and its effect on interstate commerce, the majority said, "Nothing in Lopez (an earlier Supreme Court case) requires either Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute."

2. The earth: In Public Interest Research Group (PIRG) v. Magnesium Elektron (MEI), Judge Alito joined in a 2-1 ruling gutting citizens' access to courts under the Clean Water Act. Although the Act authorizes "any citizen" to bring a "civil enforcement action" against alleged polluters, the Third Circuit ruling declared that PIRG did not have standing to sue because it had not demonstrated that MEI's pollution resulted in serious harm to the environment (reversing a rare $2.6 million fine handed down by the trial court for MEI's violations of the Act). The majority concluded that the Constitution denied Congress the authority to pass a law allowing citizens access to courts in these circumstances. Three years later, the Supreme Court essentially reversed and rejected Judge Alito's analysis in a 7-2 decision.
(Friends of the Earth, Inc. v. Laidlaw)

3. Family and Medical Leave: Writing for a unanimous court, Alito held that Congress did not have authority to require state employers to comply with the Family and Medical Leave Act. This ruling was repudiated by the Supreme Court in a later case in which Chief Justice Rehnquist wrote the Court's decision. Chittister v. Department of Community and Economic Development.


4. Privacy: In dissent, Alito would have upheld the strip search of a mother and her ten-year old daughter, even though the warrant authorizing a search did not name either of them. Judge Michael Chertoff, now head of the Department of Homeland Security, criticized that position as threatening to turn the constitution's search warrant requirement into little more than a "rubber stamp." Doe v. Groody

5. Reproductive Freedom: In dissent, Alito would have upheld a provision of Pennsylvania's restrictive anti-abortion law requiring a woman in certain circumstances to notify her husband before obtaining an abortion. His colleagues on the Third Circuit and the Supreme Court majority disagreed and overturned the provision. Planned Parenthood of Southeastern Pennsylvania v. Casey

6. Racial Discrimination in the Workplace: In dissent, Alito argued for imposing an evidentiary burden on victims of employment discrimination that, according to the majority, would have "eviscerated" legal protections under Title VII of the Civil Rights Act. In particular, the majority said that Alito's position would protect employers from suit even in situations where the employer's belief that it had selected the "best" candidate "was the result of conscious racial bias." Bray v. Marriott Hotels

7. Gender Discrimination in the Workplace: As a lone dissenter in a 12-1 decision of the full Third Circuit, Alito would have made it more difficult for someone alleging discrimination to present sufficient evidence to get their case to a jury. In particular, Alito would have prevented a woman claiming gender discrimination from going to trial, even where she had produced evidence showing that her employer's claim that it had a legitimate reason to deny her a promotion was a pretext for the employer's allegedly discriminatory actions. Sheridan v. E.I.DuPont de Nemours and Co.

8. Racial Discrimination in Jury Selection: Alito cast the deciding vote and wrote the opinion in a 2-1 ruling rejecting claims by an African American defendant who had been convicted of felony murder by an all white jury from which black jurors had been impermissibly struck because of their race. The full Third Circuit reversed this ruling, and the majority specifically criticized Alito for having compared statistical evidence about the prosecution's exclusion of blacks from juries in capital cases to an explanation of why a disproportionate number of recent U.S. Presidents have been left-handed. According to the majority, "[t]o suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants ..." Riley v. Taylor

9. In 2001, Alito authored a decision that struck down a public school district's policy that prohibited harassment against students based on their sexual orientation. The policy focused on harassment that might interfere with a student's educational performance or create an intimidating, hostile or offensive environment. But Alito ruled this policy was unconstitutional because it could cover "simple acts of teasing and name-calling."


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