Alito Sounds Death Knell for Individual Rights

14 January 2006

Alito Sounds Death Knell for Individual

Rights

By Marjorie Cohn

t r u t h o u t | Perspective

From: http://www.truthout.org/docs_2005/072105A.shtml

Tuesday 10 October

2006

Yesterday, the Senate Judiciary Committee

began its confirmation hearings on the nomination of Samuel

Alito for Associate Justice of the Supreme Court.

Alito is no John Roberts. Whereas Roberts had barely been a

judge for two years when Bush nominated him for the Supreme

Court, Alito has authored 361 opinions during his 15-year

tenure on the federal court bench. Whereas Roberts is

photogenic, with a winning smile, Alito is stiff and awkward

before the cameras. Most significantly, whereas Roberts

replaced Chief Justice William Rehnquist, who had a similar

judicial philosophy, Alito would take the place of Justice

Sandra Day O'Connor, who provided the swing vote 77 percent

of the time.

If confirmed, Alito would tip the high

court's delicate balance radically to the right. Nearly

always favoring the government, corporations and

universities, Alito has ruled against individual rights in

84 percent of his dissents.

In a 196-page report released last week, the

Alliance for Justice (AFJ) determined that in split

decisions - the "difficult cases" - "the reasoning Judge

Alito employs and the results he reaches are not balanced.

Rather," the report found, "they track the staunchly

conservative political and legal views he expressed in his

1985 application to be Deputy Assistant Attorney General for

the Office of Legal Counsel in President Reagan's Justice

Department."

Alito's 1985 application stresses his

commitment to federalism (states' rights), his view that

"the Constitution does not protect a right to an abortion,"

and his disagreement with the criminal procedure,

reapportionment (one-man, one-vote), and Establishment

Clause (church-state separation) decisions of the Warren

Court.

The members of the Senate Judiciary Committee

drew clear lines in yesterday's session. Although abortion

was a significant concern for three senators from each

party, the limitation on executive power was a much more

prominent theme during the opening statements.

Six

Democratic senators, as well as committee chairman Sen.

Arlen Specter (R-Pa.), expressed alarm at the recent

revelation that Bush has been secretly spying on Americans

since 2002. Five Democrats made reference to O'Connor's

opinion for the Court in Hamdi v. Rumsfeld: "We have long

since made clear that a state of war is not a blank check

for the President when it comes to the rights of the

Nation's citizens."

Alito's record reveals that he

"has been extraordinarily deferential to the exercise of

government power, especially executive branch power, except

in cases involving alleged infringements on religious

expression," according to the AFJ. His "judicial record

strongly suggests that he will ... interpret the

Constitution as giving the president greater authority to

evade Congressional statutes and constitutional limitations

whenever deemed essential to national security."

Indeed, in a memorandum he wrote as a lawyer in the Reagan

Justice Department, Alito argued that the attorney general

should receive absolute immunity from lawsuits when he

illegally wiretaps Americans. The Supreme Court rejected

Alito's view in a 1985 decision.

Alito also advocated

that the president make a "signing statement" indicating

what he thinks the law means when he signs a bill. Even

though the Constitution grants the lawmaking power only to

Congress, and thus courts look to congressional intent to

interpret statutes, Alito hoped that the president could

divert the courts' focus away from congressional intent in

favor of what he called "the President's intent."

George W. Bush has issued at least 108 such "signing

statements," according to the Washington Post. Most

recently, Bush qualified his concurrence with the McCain

amendment that outlaws torture and cruel, inhuman or

degrading treatment, implying that he would be free to

torture if he felt it was necessary for national security.

In 2000, Alito told a Federalist Society meeting that

he was a strong proponent of the "unitary executive," which

means that all federal executive power resides in the

president. This theory would reject discretionary executive

power of independent agencies Congress has created since the

New Deal, such as the Securities and Exchange Commission,

the Federal Communications Commission, and the Federal

Reserve Board.

Alito argued in other memoranda that

the Federal Bureau of Investigation should have broad

latitude to investigate federal employees, and that an

American Bar Association opinion prohibiting lawyers from

secretly taping conversations should not prevent IRS lawyers

from secretly taping as part of a federal criminal

investigation.

Although the senators only touched on

Alito's alarming civil rights record in yesterday's session,

one would hope they would fully inquire into this area

during the questioning.

In split decisions on claims

involving violations of the civil rights of women, racial

minorities, seniors and the disabled, Alito almost uniformly

ruled against the claimants.

As America mourns the

deaths of the 12 miners in West Virginia, we are reminded of

the importance of mine safety regulations. Yet Alito

disagreed with the Department of Labor and would not have

applied mine safety rules to an area of a defunct

Pennsylvania mine from which the company was still

extracting materials to process into energy.

Sen.

Edward Kennedy (D-Mass.) has raised the issue of Alito's

credibility. Although he promised the Senate Judiciary

Committee in his 1990 confirmation hearing for the Court of

Appeals that he would recuse himself from cases involving

Vanguard companies, in which he had substantial financial

investments, Alito subsequently proceeded to sit on a

Vanguard case. And on his 1985 job application, Alito

boasted of his membership in the ultraconservative Concerned

Alumni of Princeton, which opposed co-education and

affirmative action. Yet he now denies any memory of being in

that group.

In his opening statement, Alito told the

senators, "A judge can't have any agenda. A judge can't have

any preferred outcome in any particular case."

Yet

Sen. Chuck Schumer (D-NY) advised Alito, "We need to know

that presidents and paupers will receive equal justice in

your courtroom. If the records showed that an umpire

repeatedly called 95 percent of pitches strikes when one

team's players were up and repeatedly called 95 percent of

pitches balls when the other team's players were up, one

would naturally ask whether the umpire was being impartial

and fair." Schumer observed, "The president is not a king,

free to take any action he chooses without limitation by

law. The court is not a legislature, free to substitute its

own judgment for that of elected bodies. And the people are

not subjects, powerless to control their own most intimate

decisions."

Sen. Patrick Leahy (D-Vt.) said, "It's

important to know whether [Alito] would serve with judicial

independence or as a surrogate for the president nominating

him." Sen. Russ Feingold (D-Wis.) declared, "We need judges

on the bench who will ensure that the judicial branch of

government is the independent check on executive power that

the Constitution requires and that the American people

expect. And in these days of corruption investigations and

indictments in Washington, we also need judges who are

beyond ethical reproach."

We will see during the

questioning whether the senators will indeed hold Samuel

Alito's feet to the fire, and demand that he forthrightly

state his beliefs on the critical issues. Sen. Dianne

Feinstein (D-Calif.) correctly noted that Alito's nomination

is a "pivotal" one in the history of this country.

*************

Marjorie Cohn, a contributing editor to t r u t h o u t, is

a professor at Thomas Jefferson School of Law, executive

vice president of the National Lawyers Guild, and the US

representative to the executive committee of the American

Association of

Jurists.

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