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An analysis of judge samuel alito's legal record, particularly in the areas of civil rights, federalism, and constitutional law. It highlights his extreme views and the potential impact on the supreme court if he were to replace justice o'connor. The analysis is based on his career as a government lawyer and a federal judge, as well as his opinions in divided decisions.
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Ralph G. Neas, President, People For the American Way 2000 M Street NW, Suite 400 ❚ Washington DC 20036 ❚ 202/467- www.pfaw.org
January 2006
Executive Summary
If confirmed as the next Associate Justice, Judge Samuel A. Alito would bring dramatic, sweeping change to the Supreme Court. While his words are carefully chosen and his demeanor is measured, Judge Alito’s ultraconservative judicial philosophy is nothing short of radical. He would join Justices Clarence Thomas and Antonin Scalia at the center of a radical right-wing bloc that would change the direction of the Court and the country for decades to come, and threaten fundamental rights and legal protections. He stands in sharp contrast to the justice he would replace: Sandra Day O’Connor, a mainstream conservative whose swing vote has helped to preserve hard-won progress on civil rights, reproductive freedom, environmental protections, and a host of other issues preserving equality and justice for every American.
The White House has tried to distance Judge Alito from his lengthy record, which demonstrates he is among the most extreme members of the federal bench. His nomination has been unanimously acclaimed by the leaders of the Radical Right. He has shown a pronounced willingness to impose a narrow right-wing ideology from the bench, and compiled an extraordinary record of dissents to mainstream opinions -- indeed, the largest number of dissents on the Court of Appeals on which he currently sits.
This report analyzes Judge Alito’s public record, drawing a disturbing thread from the legal views he advanced while serving in the Reagan Department of Justice to his fifteen years on the Third Circuit Court of Appeals. It makes a resounding case for rejection of his nomination by the United States Senate in the exercise of its constitutional advice and consent duty.
Increasing Presidential Powers Throughout his career, Judge Alito has shown a strong predilection to concentrate power in the executive branch and the President, eroding governmental checks and balances and diminishing the rights of private citizens. His record is especially troubling at a time when one party controls all three branches of government and allegations of abuse of
power abound -- from warrantless wiretapping of American citizens to the unlawful detention and torture of suspects held by the government at home and overseas.
Eroding Civil Rights As a government lawyer and a federal judge, Judge Alito has consistently failed to protect civil rights. He has said he disagrees with historic Supreme Court decisions articulating the “one person – one vote” principle. As a judge, he has rarely sided with individuals seeking relief from discrimination on the basis of race, age, gender, or disability, and he has opposed efforts to redress the historic effects of discrimination in the workplace. Indeed, in civil rights cases where the Third Circuit was divided, Alito advocated positions detrimental to civil rights 85 percent of the time. He once argued that it was permissible to seat an all-white jury in a case in which the evidence indicated that prosecutors had rejected black jurors on the basis of race. As part of a 1985 application for promotion in the Justice Department, he highlighted his membership in a reactionary Princeton alumni group that opposed the admission of women and attempts by the university to increase minority enrollment.
Ending Reproductive Freedom Judge Alito has written that the Constitution does not guarantee a right to an abortion. He is on record opposing Roe v. Wade , and endorsing state laws so burdensome they effectively deprive women of their right to privacy, reproductive freedom, and reproductive health. There is little doubt that as a Supreme Court justice, Alito would vote to overturn Roe.
Favoring the Powerful over the Powerless More than his colleagues on the Third Circuit, Judge Alito has sided with corporations and government entities accused of discrimination. Several analyses of his record by academics and the news media indicate that he consistently sides with powerful entities against individuals. He once wrote that high government officials should be absolutely immune from liability in cases involving the illegal wiretapping of U.S. citizens. And he
Conclusion Judge Alito’s quiet demeanor cloaks a far right ideology that places him among the most conservative judges on the federal bench. If he replaces Justice O’Connor, he would be a consistent vote to turn back the clock on decades of progress in civil rights, civil liberties, health and safety, environmental protection and religious liberty. His extreme judicial philosophy threatens fundamental rights and legal protections for all Americans -- for decades to come. The Senate should reject his confirmation to a lifetime seat on the Supreme Court.
I. Introduction: The Record and Legal Philosophy of Samuel Alito: “No One to the Right of Sam Alito on this Court”
When President Bush nominated Judge Samuel Alito to replace Justice Sandra Day O’Connor immediately after the far right forced the withdrawal of Harriet Miers, far right leaders were immediately and unanimously enthusiastic. Robert Bork concluded “let us rejoice.”^1 Concerned Women for America pronounced that Alito “has always been one of our top choices.”^2 Disgraced former Republican Senate staffer Manny Miranda called the selection a “grand slam,” 3 and columnist Cal Thomas reported that right-wing advocates who had opposed Miers were now “ecstatic.”^4 Operation Rescue proclaimed that as a result of the nomination, “ Roe’s days are numbered.”^5 Jay Sekulow of the American Center for Law and Justice echoed the views of many by crowing that “President Bush promised that he would nominate Justices in the mold of Justices Scalia and Thomas. President Bush has done just that.”^6 Indeed, prior to Alito’s nomination, one report noted that the “Scalito” nickname for Alito “appears to have caught on even among some conservatives who appear to use it as a compliment.”^7
Alito supporters and White House spinners nonetheless claim that he is not like Justice Scalia -- he is mild-mannered, polite, and does not write bombastic opinions. But this confuses style with substance. As concluded by George Washington law professor Jonathan Turley, who supported John Roberts’ confirmation as Chief Justice, if Alito
(^1) R. Bork, “A Narrowed Rift,” National Review Online (Nov. 3, 2005). (^2) Concerned Women for America press release, “Alito is Outstanding Choice” (Oct. 31, 2005). http:www.cwfa.org/articledisplay.asp?id=9319&department=MEDIA&categoryia=misc 3 4 C. Thomas, “Bring it on with Alito,”^ Jewish World Review^ (Nov. 3, 2005). 5 Id. Operation Rescue press release, “Bush Nominates Alito” (Oct. 31, 2005). < 6 http://www.operationrescue.org/?p=290> American Center for Law and Justice press release, “Nomination of Judge Samuel Alito to Supreme Court is “wise” choice,” (Oct. 31, 2005). http://www.aclj.org/news/Read.aspx?ID=1985 7 S. Duffy, “Justice Alito?,” Legal Intelligencer (Oct. 31, 2005).
person, one-vote and other matters crucial to Americans’ rights.^10 In fact, Alito’s 1985 statement of what he described as his “very strongly” held legal views provides a blueprint for his extremely troubling legal and judicial record. For example:
(^10) See Attachment to PPO Non-Career Appointment Form of Samuel Alito, Nov. 15, 1985 (“1985 Job Application”). 11 12 See^ Appendix A – Judge Samuel Alito’s Record of Dissents on the Third Circuit. See Transcript of “A survey course on Samuel Alito’s legal views,” NPR: Morning Edition 13 (Nov. 11, 2005). See section II, infra.
(^14) Id. Alito’s dissent also demonstrates his inconsistent criticism of judicial activism, described more fully below. When applying for a Justice Department promotion, he touts executive branch and congressional "supremacy" over the federal judiciary. Yet when Congress takes steps to protect the health and safety of Americans inconsistent with “federalist” principles, he argues -- as a judicial activist -- for striking down these provisions. 15 Id.
These are only a few examples of the extreme positions advocated by Judge Alito throughout his career. The remainder of this report examines his record in more detail, analyzing his views and opinions on congressional and executive power, civil rights and discrimination, reproductive choice, religious liberty and the First Amendment, criminal law and individual liberties, environmental protection, and corporate power and individual rights.^23 In addition, serious questions that have been raised about Judge Alito’s credibility are discussed as well.
Even beyond Alito’s decisions in any particular area of the law, Alito’s record demonstrates what one observer has called an inconsistent “criticism of activism on one front with the embrace of activism on the other.”^24 He dissents in a civil rights case because he claims the discrimination victim’s lawyer has not adequately presented an issue, but then tries to deny relief in a death penalty case by bringing up new arguments
(^21) Id. (^22) Id. (^23) Except as otherwise noted, this review focuses on split or divided cases involving Judge Alito and opinions that he has written, which provide the most guidance as to his record and legal philosophy. 24 R. Gordon, “Alito or Scalito?,” Slate (Nov. 1, 2005).
on his own that were never raised by the government. He frequently claims that precedent or statutory language requires the result he supports, but is criticized by colleagues for a dissent in an individual rights case that “not only guts the statutory standard, but ignores our precedent” and for another dissent that improperly seeks to require Congress “to play Show and Tell with the federal courts at the peril of invalidation of a federal statute.”^25 As one professor has explained, Alito “massages the precedents” and legal doctrines “to make them say what he wants to say.”^26
This explains why the apparent differences between Alito and Scalia may well make Alito, if confirmed, even more dangerous on the Supreme Court. As law professor Andrew Siegel has explained, by “marrying” extremely conservative views like Scalia’s with “tact, politeness, and a deferential writing style,” Alito may well be more persuasive with other Supreme Court justices, a “more powerful advocate for his conclusions, and a bigger danger to those who support opposing legal or constitutional visions.”^27 On the question of how Alito would decide controversial cases not clearly dictated by accepted legal principles, Siegel writes, Alito’s record provides “a long and consistent answer: He will tack hard to the right” and “might be the most dangerous possible nominee.”^28 The Senate should reject Judge Alito’s confirmation.
(^25) C. Savage, “Alito’s colleagues said he ignored precedent,” Boston Globe (Nov. 2, 2005). 26 J. Bravin, “Alito prefers scalpel to sledgehammer,” Wall Street Journal (Nov. 16,
jurisprudence and, in the words of a Federalist Society 2001 conference, “Rolling Back the New Deal.”^29
Starting in 1995, this effort produced tangible, and troubling, results. Usually by narrow 5-4 margins, the Supreme Court began to strike down federal laws such as those protecting against violence against women, discrimination against the disabled, and violations of religious freedom because they purportedly exceeded Congress’ authority. From 1995 to 2000 alone, the Court invalidated all or part of more than 22 laws passed by Congress, in contrast to the 128 laws struck down during the first 200 years of the Constitution.^30 One Supreme Court expert has remarked that “[n]ot since before the 1937 constitutional crisis over the court’s invalidation of progressive New Deal legislation has a bare majority been so bent on reining in Congress.”^31 Many Senators have also criticized what Senator Specter has recently called the Supreme Court’s “judicial activism which has usurped Congressional authority” through its interpretations of the Commerce Clause, the Eleventh Amendment, and Section 5 of the Fourteenth Amendment.^32
Justice O’Connor has been a key vote in these cases. Although she has joined the narrow 5-4 majority in some of these decisions limiting Congress’ authority, she has also cast a crucial vote in several cases to restrain justices like Thomas and Scalia who have sought to overturn even more congressional laws. See Tennessee v. Lane, 541 U.S. 509 (2004)(5-4 vote including O’Connor to uphold Title II of Americans with Disabilities Act); Nevada v. Hibbs , 538 U.S. 721 (2003)(6-3 vote including O’Connor to uphold Family and Medical Leave Act).
(^29) See People For the American Way Foundation, The Federalist Society: From Obscurity to Power 30 (Jan. 2003), at 9-10, 17-19. See S. Waxman, “Defending Congress in the Courts,” Keynote Address at 7th Circuit Judicial Conference 31 (May 1, 2000) at 1-2. D. O’Brien, “Justice: Supreme Court Can No Longer Duck the Bigg Issues,” Los Angeles Times 32 (Oct. 3, 1999). Letter from Senator Arlen Specter to John G. Roberts, Jr. (Aug. 23, 2005) at 1.
Throughout his career, however, Judge Alito has advocated an extreme legal view on these issues that threatens to shift the Court dramatically if he replaces Justice O’Connor. In his 1985 job application to Ed Meese for a position in the Office of Legal Counsel, Alito proudly noted that he was a member of and “regular participant” in meetings of the Federalist Society. At the top of his list of “very strongly” held beliefs were “limited government” and “federalism.”^33 After he got the OLC job, Alito advocated action in the name of an extreme federalist view that was rejected by President Reagan himself.
Specifically, Congress passed in 1986 the Truth in Mileage Act, which was designed to protect consumers who buy used cars by making odometer fraud by dishonest used car dealers more difficult. As deputy at OLC, however, Alito recommended that President Reagan veto the bill “because it violates the principles of federalism.”^34 “After all,” Alito wrote in a proposed veto message, “it is the States, and not the federal government , that are charged with protecting the health, safety, and welfare of their citizens.”^35 President Reagan rejected Alito’s radical “federalist” advice and signed the odometer bill.^36
Ten years later, after he became a federal judge, Alito took the opportunity to try to translate his extreme federalist philosophy and anti-Congress views into action. In United States v. Rybar,^37 the Third Circuit considered the constitutionality of the federal law banning the transfer or possession of machine guns. Across the country, a number of criminal defendants like Raymond Rybar, a federally licensed firearms dealer convicted of violating the statute, challenged the law’s constitutionality under the Commerce Clause, following the Supreme Court’s 5-4 decision in United States v. Lopez, striking down the Gun-Free School Zones Act as beyond Congress’ Commerce Clause
(^33) 1985 Job Application. (^34) Memorandum from Samuel A. Alito, R. to Peter J. Wallison, counsel to the President re: Enrolled Bill S.475 (Oct. 27, 1986)(“Wallison memo”). 35 36 Proposed Veto Message attached to Wallison memo (emphasis added). 37 “Consumer Notes,”^ Baton Rouge Morning Advocate,^ (Dec. 15), 1986, at 2d. 103 F.3d 273 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997).
either Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute.”^43
The significance of Judge Alito’s dissent in R ybar can hardly be overstated. Not only was it out of the mainstream as measured by the opinions of six federal courts of appeals at the time, but even conservative Senator Tom Coburn has also recognized that it was an improper effort to legislate from the bench and strike down a law passed by Congress.^44 Subsequently, all the other federal courts of appeals that have considered such claims have repudiated Alito’s argument, and the Supreme Court has repeatedly declined to review these decisions.^45 The Commerce Clause, moreover, is the basis for numerous congressional statutes protecting civil rights, health, safety, and the environment. In fact, just this coming February, the Supreme Court is to consider two cases from Michigan concerning whether the Clean Water Act can constitutionally combat pollution in wetlands and tributaries. As the Detroit Free Press has explained, a negative ruling “could wash away federal environmental standards for anything that doesn’t cross state lines” and could “open the way” for challenges to the Endangered Species Act and other key federal environmental laws.^46 Replacing the moderate Justice O’Connor with Judge Alito could literally make the difference in these key environmental cases this year, as well as in numerous other challenges to congressional statutes that protect Americans in the years to come.
Alito has also sought to undermine Congress’ authority under Section 5 of the Fourteenth Amendment to protect Americans from discrimination and harm. In Chittister v. Department of Community and Economic Development, 226 F.3d 223 (3d Cir. 2000), Alito wrote the opinion ruling that it was unconstitutional for Congress to authorize a (^43) Id. at 282. (^44) See “Interview: Senator Tom Coburn Discusses the Supreme Court, the CIA Leak and the Iraq War.” 45 NBC News: Meet the Press (Nov. 6, 2005). See National Women’s Law Center, “Special Report: The Nomination of Samuel Alito: A Watershed Movement for Women” (Dec. 15, 2005), at 23 n.164 and accompanying text. In fact, the Supreme Court vacated and remanded the one court of appeals decision that struck down the statute. 46 Id. “Save Wetlands: Clean water at stake in cases going to high court,” Detroit Free Press (Nov. 21, 2005).
state employee to sue his employer for damages for firing him because he took medical leave under the federal Family and Medical Leave Act (FMLA). Alito recognized that in some cases Congress may be able to overcome states’ immunity under the Eleventh Amendment from such lawsuits pursuant to its authority to enforce the equal protection of the laws under the Fourteenth Amendment, but held that this rationale did not apply to the sick leave provisions of the FMLA. In particular, Alito argued, the FMLA requirement of 12 weeks of leave was “out of proportion” to any gender discrimination that the Act was to help prevent or remedy.^47
The Supreme Court reached precisely the opposite conclusion in an FMLA case raising similar issues several years later. In Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003),the Court ruled 6-3 that a state worker could sue his employer for violating his family leave rights under the FMLA. Contrary to Alito’s opinion in Chittister , the Court specifically found that Congress had appropriately sought to remedy and prevent gender discrimination by providing up to 12 weeks of unpaid family leave.^48 Although Justices Scalia, Thomas, and Kennedy dissented in Hibbs , key votes upholding the law were cast by Chief Justice Rehnquist, who wrote the majority opinion, and Justice O’Connor.
Particularly now that Chief Justice Rehnquist is no longer on the Court, replacing Justice O’Connor with Judge Alito would jeopardize both Congress’ authority under the Fourteenth Amendment and the rights of numerous Americans across the country. As one of the organizations instrumental to the passage of the FMLA has recently stated, if Alito’s views prevail on the Supreme Court, “millions of state workers would be prevented from filing claims against their employers when denied medical leave under the FMLA.”^49 In addition, replacing O’Connor with Alito could also threaten other
(^47) Chittister, 226 F.3d at 229. (^48) Hibbs, 538 U.S. at 739. (^49) National Partnership for Women and Families, Ensuring Access to The Family and Medical Leave Act (FMLA); What is at Stake: Judge Alito’s Views on the FMLA Raise Serious Concerns (Nov. 8, 2005).
