The Case Against Alito

The Nation
[from the January 23, 2006 issue]

With Judge Samuel Alito, the Senate Judiciary Committee faces its most consequential Supreme Court confirmation hearing in a generation. Not since Robert Bork has the Senate encountered a nominee whose long record and fully articulated views so consistently challenge decades of progress on privacy, civil rights and control of corporations. And never in memory has a single nomination so threatened to redirect the Court as Alito's, which would replace the pragmatically conservative swing-voter Sandra Day O'Connor. Alito's opening statement before the Judiciary Committee is January 9, but his true testimony consists of fifteen years of rulings on issues from abortion to school prayer to immigration. That record demonstrates that Alito is at odds with the interests of ordinary Americans.

Supreme Court nominees get, and usually deserve, much benefit of the doubt. But with Alito, the doubt is all of the nominee's making, and has only grown with revelations of his Reagan-era memos. As an ambitious Reagan Administration lawyer, he boasted in a now-famous 1985 job application of his conviction that Roe v. Wade should be overturned; opposed the historic one-person, one-vote decision of the Warren Court; and waved like a badge of honor his membership in a far-right Princeton alumni network notorious for its hostility to admitting women and African-Americans. Alito's defense of Nixon-era officials implicated in illegal wiretaps makes clear--in light of today's NSA wiretap scandal--that the Bush Administration's motives in Alito's nomination extend well beyond a token nod to social conservatives.

Nothing in Alito's hundreds of federal appeals court rulings in the years since suggests any mellowing of those fundamental commitments. After a careful study, University of Chicago law professor Cass Sunstein described Alito's record of appeals court dissents as "stunning. Ninety-one percent of Alito's dissents take positions more conservative than his colleagues...including colleagues appointed by Presidents Bush and Reagan." A new study by the Alliance for Justice makes the case even more emphatically: In so-called split decisions--the most difficult cases, which divided the appeals court--"Alito has frequently gone to the right of even his Republican-appointed colleagues to find against individuals claiming that government officials or corporations violated the law." He has argued strenuously in favor of the strip search of a 10-year-old girl not accused of criminal wrongdoing; supported warrantless surveillance of a criminal suspect when other courts had disallowed the practice; and tried to strip his fellow judges of the power to grant habeas corpus rights to undocumented immigrants, a position pointedly repudiated by the Supreme Court.

This is big-government jurisprudence with a vengeance. The only exception to Alito's big-government activism comes with the regulation of business. There he seems to be on a one-man crusade to undo decades of regulation, most clearly displayed in a still-astounding dissent arguing that the federal ban on machine guns violates the Constitution's commerce clause--a radical position (exceeding even Chief Justice John Roberts's famously constricted view of the Endangered Species Act) that would shred not only gun-control statutes but a host of environmental laws and other Congressional action.

Democrats as well as moderate Republicans have so far played their cards close. Will the handful of Democratic progressives who voted for the confirmation of Roberts--including Russell Feingold and Patrick Leahy--see themselves as free to oppose a nominee without Roberts's discretion about his own commitments? Will the party discipline so often exercised by minority leader Harry Reid extend to what is certain to be an emotional confirmation fight? Will civil-libertarian Republicans like Arlen Specter recognize in Alito not just a threat to Roe v. Wade but to the fundamental balance of executive and legislative power? And what about the "Gang of 14," the Republican and Democratic senators like Joe Lieberman and John McCain who last year agreed to avoid judicial filibusters except in rare circumstances? They should recall that a key principle uniting them then was that the White House should consult the Senate on judicial appointments; on Alito, the White House consulted no one but the extreme right.

The White House is banking on fear that if this second nominee goes down, Bush will nominate someone even worse. This argument ignores history: When in 1969-70 President Nixon nominated and lost both Clement Haynsworth and Harrold Carswell, the result was not "someone worse" but the pragmatic, humane Judge Harry Blackmun, who later wrote Roe v. Wade; when Bork was Borked, his replacement was Anthony Kennedy, who in 1992 joined fellow Reagan nominee O'Connor to reaffirm Roe. Alito defeatism also ignores today's political climate: As the midterm elections draw closer, as the Iraq War scandals deepen, Senate Republicans are falling over one another to distance themselves from the Administration and the far right.

Alito will undoubtedly try to backpedal from his unambiguous track record. That only makes more urgent the case against the real Alito revealed in his memos and rulings. The American people are not ready for a nominee so profoundly committed to intrusive government, whether that means right-to-lifers intruding on sexual privacy, religious fanatics intruding in the science classroom or the NSA intruding on phone calls without a warrant. Far from being a mainstream conservative, Judge Alito represents a malignant future; his entire biography suggests he will swing the Supreme Court toward a right-wing authoritarianism that's out of step with the public and the Constitution.