Alito Alert

By Jeremy Leaming

Samuel A. Alito Jr. can hardly be described as a stealth candidate.

Indeed, with a background that includes extensive work in the Reagan administration’s Justice Depart\xadment and 15 years on the 3rd U.S. Circuit Court of Appeals, President George W. Bush’s nominee to the U.S. Supreme Court has a long legal track record.

And as the days passed after Bush’s announcement of the nomination, Alito’s record proved increasingly troubling to an array of civil liberties and civil rights groups. Judicial decisions and government actions by Alito deeply worried progressive leaders but were cheered by the president’s Religious Right backers who want more justices in the mold of the high court’s ultra-conservative members An\xadto\xadn\xadin Scalia and Clarence Thomas.

By mid December, the news media and public interest groups, including Americans United for Separation of Church and State, were reporting that Alito’s legal record was a staunchly right-wing one.

“The more we learn about Judge Alito,” a spokeswoman for Sen. Harry Reid (D-Nev.) told The Washington Post in early December, “the more problematic this nomination becomes.”

In mid November, The Washington Times broke the story about Alito’s 1985 job application to become deputy assistant attorney general in the Reagan administration. In a personal qualifications statement, Alito highlighted his work in the Reagan solicitor general’s office and bragged about his political credentials.

“I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to the Administration,” Alito wrote.

Other comments in the document thrilled his Religious Right supporters and heightened the growing concerns of progressive groups.

Americans United, which formally announced opposition to the nomination Dec. 16, noted that the application is troubling and revealed that in 1985 Alito was already a staunch opponent of church-state separation and a proponent of limits on the reach of the judiciary.

“I believe strongly,” Alito wrote, “in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values.

“In the field of law,” he continued, “I disagree strenuously with the usurpation by the judiciary of decisionmaking authority.… The administration has already made major strides toward reversing this trend through its judicial appointments, litigation, and public debate, and it is my hope that even greater advances can be achieved during the second term, especially with Attorney General [Edwin] Meese’s leadership at the Department of Justice.”

Alito also cited William F. Buckley Jr. and his National Review, as having great influence on his views and noted that during college, he had “developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.”

Earl Warren, the 14th chief justice, led a high court from 1953 to 1969 that produced a raft of landmark cases that advanced civil rights and civil liberties in America. The best-known church-state decisions of that era are 1962’s Engel v. Vitale and 1963’s Abington v. Schempp, two important rulings that barred government-sponsored prayer, Bible reading and other devotions in public schools.

If Alito supports official worship in public schools, church-state experts say his confirmation to the high court would result in radical changes indeed.

Alito’s job application also exposed some other controversial aspects of the judge’s worldview. For example, he boasted that he was “particularly proud” of his work in the solicitor general’s office, which had argued in numerous cases before the Supreme Court that “racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.”

Alito bragged about being a “life-long registered Republican,” making political contributions to Republican candidates and belonging to several ultra-conservative organizations, including the Federal\xadist Society and Concerned Alumni of Princeton University (CAP). CAP produced a magazine called Prospect, which has been edited by individuals known for their often incendiary conservative commentary, such as author Dinesh D’Souza and talk radio host Laura Ingraham.

The Daily Princetonian, a campus newspaper, reported in November that its sources described CAP as a “far-right organization funded by conservative alumni committed to turning back the clock on coeducation at the University.” The university newspaper cited a February 1973 Prospect article stating that the “makeup of the Princeton student body has changed drastically for the worse” after women were admitted.

The Alito job application set off alarms both inside and outside Washington. The Boston Globe opined, “The more Ameri\xadcans learn about Alito, the more worrisome his appointment becomes.” The newspaper editorial concluded that “the country’s return to the days before the Warren Court” would be “a darker, poorer time of liberty and justice for some.”

The Seattle Post-Intelligencer’s editorial page stated, “What is known already reveals a man who, at times, has been remarkably unsympathetic to the rights of Americans generally and women and minorities in particular.”

Alito, a 55-year-old father of two children, tried quickly to distance himself from his 1985 job application. The New York Times reported on Nov. 16, that Alito told several senators that his personal statement merely reflected his views as “an advocate seeking a job.”

After meeting with Alito, Sen. Dianne Feinstein (D-Calif.), a member of the Senate Judiciary Committee, told report\xaders that Alito described the application as reflective of a different time in his life and that he ensured her that he would not rely on his personal beliefs to interpret constitutional law.

But not long after the job application became public, more evidence of Alito’s sharply conservative leanings surfaced. In late November, the National Archives released a brief Alito authored during his time in the Reagan administration’s Justice Department that contained a strategy for overturning Roe v. Wade. (The 1973 landmark decision by the high court concluded that the Constitution’s protection of privacy rights included a woman’s decision to have an abortion.)

The lengthy document, also written in 1985 and submitted to then-Solicitor General Charles Fried, detailed arguments for upholding state restrictions on reproductive rights. Alito’s memo centered on two cases, American College of Obstetri\xadcians and Gynecologists v. Thornburgh and Charles v. Daley, where state laws limiting abortion were found unconstitutional. Some of those regulations included requiring a physician to give a woman seeking an abortion certain information about fetal development, the medical risks of abortion and eligibility for state aid to pay for neonatal care and delivery and that the father would be responsible for providing child support.

In the 17-page document, Alito suggested that the U.S. Supreme Court may not be ready to overturn Roe, but may be amenable to limiting the scope of the decision.

“I find this approach,” Alito wrote, “preferable to a frontal assault on Roe v. Wade. It has most of the advantages of a brief devoted to the overruling of Roe v. Wade: it makes our position clear, does not even tacitly concede Roe’s legitimacy, and signals that we regard the question as live and open.”

Sen. Patrick J. Leahy (D-Vt.), a member of the Judiciary Committee, told The New York Times that the brief “heightens concern about Judge Alito’s views regarding ‘settled law’ and his eagerness to engage in activism to change the law with which he disagrees.”

A Dec. 1 editorial in The Oregonian warned that if Alito’s nomination were confirmed, “[H]is track record suggests he won’t emerge as a champion of women’s reproductive rights. Most likely, he’ll smile upon laws that let the government further monitor, restrict and approve who can get an abortion.”

Americans United in December joined a long list of groups opposed to the nomination. Some of the groups in opposition include the Alliance for Justice, the National Council of Jewish Woman, the National Association for the Advancement of Colored People, the National Organization for Women, the Human Rights Campaign, Planned Parent\xadhood Federation of America, the Congressional Black Caucus, the Union for Reformed Judaism, the Unitarian Universalist As\xadsociation, the Religious Coalition for Re\xadproductive Choice, the Leadership Con\xadference on Civil Rights and People For the American Way.

An extensive report produced by the Americans United legal and legislative departments and Florida State University law professor Steven Gey focused on Alito’s record involving religious liberty.

The report pointed to cases Alito was involved in or authored during his 15-year tenure on the 3rd Circuit that would have allowed officially sanctioned prayer at public school events, that forced a public school to disseminate an outside Christian group’s religious messages and that found government should be relatively unfettered in celebrating religious holidays.

Replacing Justice Sandra Day O’Con\xadnor with Alito, the report argued, would “fundamentally alter First Amend\xadment law” and jeopardize the protections for religious minorities “that the Supreme Court has recognized and consistently enforced during the past sixty years.”

The AU report concluded, in part, that Alito’s “views about the right of religious majorities to use the public schools and other official settings to broadcast their message of religious expression without regard for the competing rights and interests of religious minorities suggests an alarming unwillingness to recognize the oppression of religious minorities as a matter of constitutional concern.”

The report also noted that Alito’s views on religious liberty as expressed in his work on the 3rd Circuit contrast drastically with O’Connor’s views.

“Throughout her career on the Court, Justice O’Connor has been keenly attuned to the plight of religious minorities in society as a whole, and most especially in the public schools,” AU’s report states. “But Judge Alito’s focus has been elsewhere: on religious majorities’ ability to express their views through governmental instrumentalities, at government owned facilities, and in government-organized enterprises like the public schools.”

Regarding the public schools, for ex\xadample, AU’s report highlights Alito’s action in a case involving a public school district’s policy of allowing students to vote on having prayer at graduation ceremonies.

By a 9-4 vote, the 3rd Circuit in ACLU of New Jersey v. Black Horse Pike Regional Board of Education found the school’s policy unconstitutional. Citing high court precedent, the 3rd Circuit found the school-sanctioned prayer coercive and an endorsement of religion. But Alito joined the dissenters in arguing that a majoritarian policy in the public schools would pass constitutional mus\xadter. According to Americans United, the dissent in Black Horse also suggested that protecting religious dissenters from “being subjected to unwanted religious expression at their commencement ceremony was tantamount to hostility toward the religious expression of the majority.”

In two cases before the 3rd Circuit, AU’s report noted, Alito sided with religious displays by government. AU’s report points out that Alito’s stances in those two decisions veered markedly from those of O’Connor’s.

“When a judge is hostile to the separation of church and state, solicitous of governmental sponsorship of religion, and insufficiently concerned about the rights of religious minorities,” states AU’s report, “there will always be some mechanism, whether procedural or substantive, for allowing government to en\xadcroach on the fundamental freedoms that the First Amendment’s Religion Clauses were designed to secure.”

In regard to the free exercise of religion, AU’s report concluded that Alito has shown a concern for the right of individuals to express their religious beliefs, except for prisoners. In a 2002 decision, Alito wrote for the majority in upholding a New Jersey prison’s policy of labeling certain religious groups as “security threats” and denying them religious ac\xadcoutre\xad\xadments.

Religious Right groups and leaders, such as Focus on the Family (FOF) and the Family Research Council (FRC), reacted to the mounting opposition to Alito’s nomination with shrill rhetoric and expensive television and newspaper ads.

In a Dec. 5 “Washington Update,” FRC’s Tony Perkins complained about the opposition to Alito, saying that the judge was largely being criticized for his “personal views because he is a judicial conservative.”

“He has fifteen years on the federal bench,” wrote Perkins, “during which he did not impose his personal views on the law.”

Perkins also announced a third “Justice Sunday” event. The first Justice Sun\xadday was dubbed “Stopping the Filibuster Against People of Faith,” and included conservative religious leaders railing against federal judges. Justice Sunday III, called “Proclaim Liberty Throughout the Land,” was set for Jan. 8 at the Rev. Herbert Lusk’s Greater Exodus Baptist Church in Philadelphia. Along with Perkins and Lusk, FOF founder James Dobson was to speak at the rally, scheduled the day before the start of Alito’s confirmation hearings on Jan. 9.

In a press statement announcing Justice Sunday III, the FRC stated the event would be broadcast in churches, on television and radio stations across the country and would “educate people of faith on how the judiciary impacts their lives.”

Focus on the Family Action, the political arm of Dobson’s highly successful Colorado-based evangelical Christian ministries, paid for newspaper ads vilifying a Democratic senator for suggesting that the Alito nomination was weak and that “America deserves better.”

Dobson’s group bought ads attacking Sen. Ken Salazar (D-Colo.) in two Colorado newspapers. The ads featured a picture of the senator under a blaring headline, “America deserves better than what we got here,” the Rocky Mountain News reported.

A late November article from a FOF Web site called CitizenLink urged supporters to contact their senators in support of Alito’s nomination.

Other organizations took advantage of the holiday season to push Alito’s nomination. The New York Times reported Dec. 6 that the Committee for Justice paid for TV advertisements accusing groups such as the American Civil Liberties Union of trying to strip the public square of Christmas displays and touting Alito’s record of support for government-sponsored religious holiday displays.

Americans United Executive Director Barry W. Lynn told The Times that “hitching Samuel Alito to Santa’s sleigh” would likely not tamp down the rising concern over Alito’s “regard for the Constitution.”

The Senate tentatively set Jan. 17 for voting on whether to confirm Alito’s nomination.