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Impact of future appointments to the U.S. Supreme Court

Responses to the nomination
of Judge Samuel Alito, Jr.

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Background:

Judge Alito was born in Trenton, NJ, in 1950. He graduated from Princeton in 1972 and obtained a Doctor of Law degree at Yale in 1975. Between 1981 and 1985, he was an Assistant to the federal solicitor general. During 1985 to 1987, he was the deputy assistant to the U.S. attorney general. He has been a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, PA since 1990. This is a court that is one level below that of the U.S. Supreme Court. It is also among the most liberal of the Circuit Courts of Appeals.

According to the Rominger Legal news service, Alito has been "dubbed 'Scalito' or 'Scalia-lite'." 1 This is in reference to Justice Scalia being generally regarded as the most conservative strict constructionist Justice of the Supreme Court. Reporters Elisabeth Bumiller and Carl Hulse of the New York Times describes his record as being conservative on abortion access, and tough on organized crime. They wrote:

"Judge Alito, the 55-year-old son of an Italian immigrant and a graduate of Princeton University and Yale Law School, has a rich background in constitutional law and government. His resume is not unlike that of Chief Justice John G. Roberts Jr., a Harvard Law graduate and appellate judge who sailed through his Senate confirmation hearings.....Judge Alito, a methodical and cautious jurist who is said by Republicans to have impressed Mr. Bush with his modesty in an interview last summer, responded that he had long held the Supreme Court 'in reverence'." 2

President Bush nominated Judge Alito on 2005-OCT-31. He said:

"Judge Alito is one of the most accomplished and respected judges in America, and his long career in public service has given him an extraordinary breadth of experience....Judge Alito has more prior judicial experience than any Supreme Court nominee in more than 70 years." 2

Judge Alito scores high on such matters as experience, intelligence, integrity, thoughtfulness, clear thinking, etc. However there is an over-riding factor: his judicial philosophy. Many recent moral, ethical, and privacy rulings of the U.S. Supreme Court have been decided by a 5 to 4 vote. Often, Justice Sandra Day O'Connor has cast the deciding vote. If Judge Alito's nomination is confirmed, Justice O'Connor will retire and her swing vote will be replaced by a Judge Alito's solidly conservative, strict constructionist vote. The entire nature of the Supreme Court would undergo a massive change. Over the many decades that Alito would probably serve on the Court, his vote would make profound changes to the culture of the United States as previous laws which were found to be unconstitutional will be affirmed, and vice-versa. The changes might well occur in the areas of personal privacy, the power of the executive branch of government, abortion access, equal rights for homosexuals, same-sex marriage, separation of church and state, affirmative action, etc.

Judge Alito's views:

Prior to Senate confirmation meetings, it is difficult to determine Jude Alito's views on controversial matters. That is because the vast majority of his hundreds of rulings as a judge are required to follow prior decisions by the U.S. Supreme Court.

Consider the following statement by, Mischael Peroutka of TheAmericanView.com on 2006-JAN-04:

"Regardless of what you have read, seen or heard, the record of President Bush's Supreme Court nominee Judge Samuel Alito shows that he is not pro-life. He has voted against banning partial-birth abortion (infanticide). He has cited approvingly Roe v. Wade -- which he did not have to do and which is not law. He has, in one case, said an eight-and-a-half-month-old unborn baby that died was not Constitutionally a person because Roe v. Wade says this." 3

Justices of the U.S. Supreme Court are free to express their personal opinions on each case brought before them. However, judges at lower level courts must follow prior decisions of the Supreme Court. So, when deciding a case involving the constitutionality of a law like the one that banned D&X (a.k.a. partial birth) abortions, he had to follow the prior decision of the Supreme Court which stated that a health exemption clause must be included in the law in order to make it constitutional. When deciding a case involving a woman's access to an abortion, he must follow Roe v. Wade and similar Supreme Court ruling which grants women restricted access to abortions.

Justice Alito is also alleged to have given his legal opinion that the U.S. Constitution does not guarantee a woman's right to abortion access. He also expressed his pride in his work to overthrow the Roe v. Wade decision of the U.S. Supreme Court as an employee of the federal government. But he wrote these comments in a job application when he successfully attempted to land a job decades ago during the Reagan years in the Justice Department. People sometimes write material in job applications which is not particularly accurate.

People for the American Way stated (PFAW):

"While in the Solicitor General's office, Alito argued that Cabinet officials charged with authorizing illegal wiretaps of Americans in this country are entitled to absolute immunity from legal liability, a deeply troubling position at a time when the President vows to continue illegal domestic spying."  4

However, that work was done on behalf of his employer, and may not have represented his own beliefs. Lawyers are noted for their ability to argue and work on either side of a case, and to suppress their own opinions in favor of the wishes of whomever hired them.

Some recent developments are more troubling. PFAW continues:

"As a judge, Alito cast the deciding vote to uphold the FBI's video surveillance of a suspect's hotel room without a warrant and tried to approve the strip search of a mother and her ten-year-old daughter even though the warrant authorizing the search did not name them."

"Alito broke his pledge to recuse himself from cases involving Vanguard funds, with which he had significant investments. Alito and Bush administration officials have offered at least three different excuses for his failure to keep his promise, including blaming a 'computer glitch'."

"In his Senate questionnaire, Alito implausibly claimed not to remember having been a member of a group known as Concerned Alumni of Princeton, which advocated restrictions on the admission of racial minorities and women at Princeton while supporting 'affirmative action' for athletes, legacies, and ultraconservative professors. But he had previously bragged in writing about his membership in the group, which was made infamous by press coverage of its hostility to diversity." 4

The British Broadcasting Corporation commented that in 1991, one year after being appointed to the Federal Appeals Court:

"....he voted to uphold all restrictions on abortion in Pennsylvania law, requiring a woman to notify her husband before an abortion. This was struck down by the Supreme Court in a decision that reaffirmed the landmark Roe v Wade case."

"Other notable cases involving Mr. Alito include:

bulletPolice v City of Newark, 1999; the opinion he drafted ruled that Muslim police officers in Newark could keep their beards for religious reasons
bulletFatin v INS, 1993; he joined the majority in backing the right of an Iranian woman to seek asylum on grounds of fear of persecution for her gender and feminist ideas
bulletThe Pitt News v Pappert, 2004; he backed the right of student newspapers to carry alcohol adverts as a matter of free speech.
bulletACLU v Schundler, 1998; he ruled that a public display of a creche and menorah did not violate prohibitions on government endorsement of religion because it also included non-religious symbols including Frosty the Snowman.  5

Current status of the nomination process:

Democrats on the Judiciary Committee delayed the vote on Judge Alito's nomination until 2006-JAN-24. His nomination passed by a straight party-line vote with all Republicans voting in favor and all Democrats voting against. The matter proceeded to the Senate who confirmed Judge Alito as the 110th Supreme Court justice by a vote of 58 to 42.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Some possible Supreme Court nominees," RomingerLegal newsletter, 2005-OCT-28.
  2. Elisabeth Bumiller and Carl Hulse, "Bush Picks Appeals Court Judge to Succeed O'Connor on Court," New York Times, 2995-OCT-31, at: http://www.nytimes.com/ This report requires a free membership to access.
  3.  Mischael Peroutka, "Alito Record Proves He is Not Pro-Life, Supported Roe v. Wade, Should Not Be Confirmed," TheAmericanView.com at: http://www.prnewswire.com/
  4. "Quiet -- Alito approves of government listening," newsletter, People for the American Way, 2006-JAN-09.
  5. "Profile: Judge Samuel Alito," BBC News, 2005-OCT-31, at: http://news.bbc.co.uk/

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Copyright © 2006 to 2009 by Ontario Consultants on Religious Tolerance
Original posting: 2006-JAN-09
Latest update: 2009-JUL-17
Author: B.A. Robinson

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