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Analysis: The Alito Problem
By: Mark Kernes (Courtesy of
Posted: 2/2/2006

Washington, D.C. – The confirmation of Third Circuit Appeals Judge Samuel Alito to the U.S. Supreme Court cements a plurality of hard-line conservatives on the nation’s highest court, and arguably gives control of all three branches of the United States government over to religious conservatives.

According to a story in the Jan. 30 New York Times, in February, 2005, "as rumors swirled about the failing health of Chief Justice William H. Rehnquist, a team of conservative grass-roots organizers, public relations specialists and legal strategists met to prepare a battle plan to ensure any vacancies were filled by like-minded jurists."

The article went on to disclose that "[t]he team recruited conservative lawyers to study the records of 18 potential nominees — including Judges John G. Roberts Jr. and Samuel A. Alito Jr. — and trained more than three dozen lawyers across the country to respond to news reports on the president’s eventual pick."

The Times article, however, scarcely reveals the extent of the vetting Alito was given, both in personal interviews with top Justice Department officials, in investigations into his background and in analyses of his decisions while on the bench – all necessary, in the administration’s view, to make sure there was no possibility that once confirmed to the high court, Alito would deviate from the administration’s religio-conservative agenda.

"I would assume that Bush wanted to be sure that he had somebody with the philosophical makeup that he wanted and a commitment to that philosophical makeup, or else he wouldn’t have nominated him," commented H. Louis Sirkin, prominent First Amendment attorney. "I mean, you never know what may or may not happen once they get on the bench, but he’s got too much of a record, I think."

Indeed, Alito’s positions on such vitally important social issues as abortion have been well-known since his 1985 job application for a post in the Reagan administration, where he wrote that the "Constitution does not protect a right to an abortion," a stance that he failed to back away from during four days of questioning by the Senate Judiciary Committee.

Alito is also a strong supporter of executive-branch power, which was revealed in a 1984 memo arguing that Cabinet officials who authorize illegal wiretaps should have "absolute immunity" from prosecution. This stance may prove critical when the illegal wiretaps which President Bush ordered the National Security Agency (NSA) to perform over the past five years finally come before a federal court.

The religious right has been staunchly behind Alito since the moment that Bush announced his nomination, and during the confirmation hearings, both Dr. James Dobson’s Focus on the Family and Tony Perkins’ Family Research Council sent out twice-daily memos to their online subscribers, "analyzing" the day’s events and decrying Democrats’ attempts to get the nominee to respond fully to questions about his judicial and personal views. Both of those groups and several others have urged their readers to personally contact Republican senators whom the religious groups believe may oppose Alito on several grounds, particularly senators who are openly pro-choice such as Susan Collins and Olympia Snowe, both of Maine. Both senators voted to confirm Alito.

Attempts to bring Alito’s judicial record before the public were opposed at every turn by the Republican National Committee (RNC). For instance, when Knight-Ridder Newspapers assigned several reporters to read and analyze all of Alito’s published opinions, aided by attorneys on both sides of each controversy, they concluded that, "During his 15 years on the federal bench, Supreme Court nominee Samuel Alito has worked quietly but resolutely to weave a conservative legal agenda into the fabric of the nation’s laws." Within days after that article appeared, the RNC circulated a lengthy memo headlined, "Knight Ridder Misrepresents Judge Alito’s 15-Year Record."

Justice Alito is a devout Catholic, as are both Chief Justice Roberts and Associate Justice Antonin Scalia, and Alito’s wife, also an attorney, has provided free legal assistance to Women For Life, an anti-abortion group that has tried to shut down women’s clinics, so the possibility that Alito has, as he has claimed, an "open mind" on the constitutionality of Roe v. Wade, the seminal Supreme Court abortion decision, is vanishingly small.

Among the concerns voiced by several Democratic senators was Alito’s membership in Concerned Alumni of Princeton (CAP), a non-official group formed by Princeton University alumni to oppose the recruitment of female and minority students in order to foster diversity. A local newspaper article from the 1980s introduced during the proceedings referred to the organization’s demands to do away with Princeton’s Women’s Studies program, as well as complaints about a gay student group, the admission of more minority students, the campus "Third World Center," and more. Alito originally claimed not to recall belonging to the group, though he touted such membership in his 1985 job application, but later followed the lead of Republican senators and pundits to offer an explanation for why he might have been motivated to join it.

People for the American Way wrote, "Opposition to Princeton’s growing gender and racial diversity — widely understood as the driving force behind the group’s agenda — was ‘certainly not any part of my thinking in whatever I did in relation to this group.’ Instead, he attributed his membership to anger that ROTC had been kicked off campus during the Vietnam War." However, later questioning noted that in fact the group spent little time trying to bring ROTC back onto the campus.

The New York Times reported on Jan. 13 that Alito was the driving force behind what it described as an "innovation" in the way the Reagan administration believed that presidential signing statements – the mini-speeches presidents make during the public signing into law of important pieces of legislation – should be viewed. Edwin Meese III, Reagan’s attorney general, in a Feb. 25, 1986, speech, urged U.S. courts, in addition to considering the Congressional Record of legislators’ explanations of the meaning of the bills they were passing, to look to the president’s signing statement for evidence of "what that statute really means" – an unprecedented position in jurisprudence since presidents play no part in the debate leading up to the drafting and passage of any federal legislation.

This "innovation" was the brainchild of then-deputy assistant attorney general Samuel Alito, who understood both Meese’s and Reagan’s desire to expand presidential power into the legislative area. Alito wrote that "our primary objective is to ensure that presidential signing statements assume their rightful place in the interpretation of legislation," which, he thought, would "increase the power of the executive to shape the law."

Alito predicted that "Congress is likely to resent the fact that the president will get in the last word on questions of interpretation" – a prediction that was borne out by the Judiciary Committee’s questioning. The issue is vitally important, especially in light of President Bush’s declaration, upon signing a defense appropriations bill that contained an amendment restating U.S. opposition to the use of torture to extract information from political prisoners, that he felt he could ignore that law if it suited his purposes to do so.

"The executive branch shall construe" the amendment, Bush’s statement said, "in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander in chief and consistent with the constitutional limitations on the judicial power."

So far, the Supreme Court has not addressed the legal effect of presidential signing statements, but Alito’s earlier position on the issue will undoubtedly play a role when that subject impacts a case before the court.

Alito’s 1986 statements will likely also impact Bush’s claim that his presidential powers allow him to violate the Fourth Amendment prohibition against unreasonable search and seizure, as well as the Foreign Intelligence Surveillance Act (FISA) in ordering the NSA to wiretap U.S. citizens – actions that have led to increased calls for Bush’s impeachment.

"[Retiring Justice Sandra Day] O’Connor was certainly important in a way that we can’t count on Alito being," opined First Amendment attorney and Free Speech board member Reed Lee, "in saying, ‘We don’t have an imperial executive. We have a president that is governed by law. All these notions of inherent executive authority need to be assessed in light of the fact that we’re a constitutional democracy.’ I think exchanging O’Connor for Alito will be a devastating blow to that view, because I don’t think Alito is prepared right now to stand up to the executive the way O’Connor probably is prepared at the present time to stand up. And that is critical now given the claims that this president is making of inherent executive authority, the likes of which we haven’t seen since Nixon."

Another important area in which Alito’s confirmation will affect the high court, and eventually the whole of American society, is the steady encroachment of religion on politics.

"We firmly believe that Sam Alito meant what he said in 1985 about his staunch belief that the Warren Court got it wrong on church/state matters," proclaimed the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, "and that the Constitution does not provide protection for reproductive rights."

Reed Lee shared that concern.

"Another obvious area where O’Connor tended to be on the winning side recently on 5-4 cases is church/state relations," Lee explained. "That law will change, although how much that law will change really remains to be seen. Basically the question is this: If with Alito the government wins a few more ‘plastic reindeer’ cases than it did before, that’s probably not going to be critical to the republic."

"The ‘plastic reindeer’ phrase comes from a case called Lynch v. Donnelly," Lee continued, "the Pawtucket [R.I.] crèche case from a few years ago, which O’Connor wrote the opinion in, and she said that the crèche was okay because also as part of the display was a Christmas tree and Santa Claus and reindeer, so that meant that the government could make out the claim that the crèche was there to celebrate the holiday season, not to celebrate one particular religion. I think that it will now be clearly more likely for governments to win church/state establishment clause cases on that ground with Alito replacing O’Connor. I kind of think those are pyrrhic victories from the point of view of the religious right, because they’re winning only by saying that religious expression is trivial, meaningless or unintended. Now, whether the change in church/state relationship goes deeper with the addition of Roberts and Alito is a very, very critical question. I think that is a matter of some substantial concern, but time will tell."

Lee, however, has a slightly more optimistic view than most regarding Alito’s likely effect on sexual speech.

"There was a long time when Justice O’Connor was very, very rarely on the losing side of a free speech case," Lee analyzed, "and in particular in cases involving sexually oriented expression, so that when cases went well, on those occasions that they did, they went well because she was on our side. When they didn’t go well, they didn’t go well because she was against us. I’m thinking, [New York v.] Ferber, FW/PBS [v. Dallas], and really up through [Erie v.] Pap’s. Up through Pap’s, she was quite regularly on the winning side; good or bad, she was on the winning side, so she was a very important swing vote."

However, Lee said, since the Erie v. Pap’s ruling, O’Connor has been on the losing side of 5-4 decisions favorable to the industry, or "half-heartedly with us" in cases like Ashcroft v. Free Speech Coalition, the Child Pornography Prevention Act case, although she voted with the majority in Lawrence v. Texas, but on more limited grounds than the plurality opinion.

"So on the narrow issue of recent cases involving freedom of sexually oriented expression, she has not been a critical swing vote," Lee opined, "so losing her to a judge who can be counted on in general to be much more conservative than she is, is not likely to be immediately catastrophic to this narrow set of cases. In fact, it is possible that both Roberts and Alito will be more sensitive than their predecessors were to how unreasonably their two predecessors applied things like secondary effects analysis and the notion that one municipality can rely on vague studies and that sort of thing. In fact, there’s hope that both of the new justices will be more receptive than their predecessors were to challenges to that reasoning, the reasoning of Renton [v. Playtime Theatres] and those sorts of cases. That’s not a prediction; it’s a hope, but in the narrow range of these cases, I don’t think that either of those replacements are going to be immediately critical."

However, Lee sees a more subtle danger in both the Alito and Roberts confirmations.

"I think both Roberts and Alito are likely to engage in procedural rulings that won’t make the news, that won’t bring a case tumbling down all at once, but that might make it very, very much more difficult for us to present constitutional challenges," Lee warned, "and those kinds of procedural and technical rulings could hurt us even in the area of the sexually oriented expression, where on the substance, I don’t expect an immediate negative jerking reaction that things will get a lot worse."

"Moreover, I could see them [Roberts, Alito, Scalia and Thomas] teaming up even with people like Justice [Anthony] Kennedy to make it much, much harder for us to get into federal court, to make it much, much harder for us to get into courts on anticipatory [facial] challenges, and things like that. Those procedural matter could hurt a lot."

Although Alito quickly gained the nickname "Scalito" for his avowed admiration for ultra-conservative Associate Justice Antonin Scalia, Lee isn’t as convinced as many that Alito will follow closely in his hero’s footsteps.

"Scalia basically says that the First Amendment doesn’t protect the business of disseminating sexually oriented expression, and that’s a complicating factor in free speech law that the court has long resisted: That you can say it but you can’t sell it," Lee explained. "He has said that repeatedly in opinions where he’s been all by himself, and frankly, I think he’d have problems on that score even with [Associate Justice Clarence] Thomas."

"Scalia’s real problem is that what he says is a tradition just isn’t," Lee continued. "Scalia just cannot back up the notion that traditionally the First Amendment has a hole in it for what he calls pandering. He relies on one case that was decide in 1966, Ginzburg [v. United States], and even the author of the Ginzburg wrote, when they split on this issue in the FW/PBS case, that it didn’t mean what Scalia says it means. The Meese Commission tried to take Ginzburg and tried to make a major constitutional doctrine out of it. Ginzburg has been around for 40 years; everybody has had a chance to make a major constitutional doctrine out of it; nobody wants to but Scalia. It’s possible Alito will go along with him on that, but I don’t think it’s likely."

"I think there is something to the view that Scalia just has a different view of himself with respect to the decided cases, and Roberts made it very popular to distinguish himself from Scalia by saying, ‘Look, I’m just more modest than he is. I take these precedents seriously.’ I think there is truth to that with respect to Roberts. I think Alito will likely hang closer to Roberts on most issues than Scalia. In fact, having the two of them there could conceivably have the effect of drawing Thomas closer to them and away from Scalia. I disagree with Roberts on a lot of things, but there’s no question that Roberts especially is a very, very clear and careful constitutional thinker, and in the sense that he’s at least a marginal improvement over Rehnquist, he may draw Thomas closer to him and therefore away from Scalia, so that in the long run, it may turn out that Roberts has Alito and Thomas very tightly clustered around him on issues like the pandering theory, leaving Scalia still off on his own."

Not only does Lee reject the idea that, as far as sexual speech is concerned, the trade of Alito for O’Connor is not as bad as is generally thought, he also has some faith that simply being elevated to the Supreme Court may bring about unexpected changes in a judge’s positions.

"I think history shows that politicians who think they’re choosing judges that are theirs down the line are more often than not disappointed," Lee assessed. "I really do think there’s something that comes with the life tenure. There’s something that comes with the isolation, the political isolation of a federal judge, and I think Justice Kennedy is a perfect example of that. [Associate Justice David] Souter was deliberately a stealth candidate, and those who put up stealth candidates get what they deserve; they get surprised. Kennedy was someone who was supposed to be down the line a rigid judicial conservative, and in many respects, he is – but Justice Kennedy has become an extraordinarily good free speech justice."

Kennedy wrote the excellent opinions in Ashcroft v. Free Speech Coalition and Lawrence v. Texas.

"The upshot is," Lee summarized, "this is a change that’s going to hurt. It is not likely to hurt us immediately in our narrow area [First Amendment law], and in our narrow area, we’ve got two new minds up there that we can try hard to convince, try hard to debunk this notion of secondary effects, for instance, that I’m quite convinced O’Connor was going to stay with until she left."

Lee also fears that Roberts may be able form a coalition of conservatively-oriented justices similar to the left-leaning coalition that Justice William Brennan was able to form during his later years on the court.

"I think the interesting dynamic over the next couple of terms is whether Roberts is going to be able to do that for his views," Lee said. "If he does, we could be in for some very tough times, and certainly with the addition of Alito to replace O’Connor, we’ve got to prepare for very tough times, and unfortunately, it comes at times when we’re getting ready to advance some arguments where we might, if the arguments are accepted, make great progress in the area of obscenity, for instance. I’m thinking of several arguments now advanced in the [U.S. v.] Extreme Associates case, any one of which could establish that obscenity laws don’t apply so long as expression is confined to consenting adults. I think we are on solid ground in making some of those arguments. Unfortunately, we’re now making them to a court that is predisposed not to be receptive."

Sirkin notes that Justice Alito will probably have to recuse himself from consideration of the Extreme case, since he participated in Sirkin’s motion to have Extreme’s appeal reheard by the full Third Circuit court en banc.

"I think it’s going to be very, very tough going in this court at least for the next few terms, even on free speech cases," Lee continued. "But we have to remember, of all the areas of constitutional law, I think you can argue that free speech law survived best in the era of the Burger and Rehnquist courts, and those of us who practice in that area have to understand that, and why that was, and that is because we have a very powerful constitutional weapon, and it’s one that even justices on the right, even Scalia, knows. He likes the First Amendment around when abortion protesters are getting messed with. So we’ve got to maintain our understanding that we can speak to justices of all political stripes on free speech issues, and historically over the last 30 years, free speech claims have done comparatively well while other claims equally deserving have been getting slaughtered. So we’ve got our work cut out for us. We should not and cannot just fold up and say ‘All is lost.’ Time will tell, but I don’t expect that either Roberts or Alito will come up with startling, astonishingly new and astonishingly bad free speech doctrine."

Lee is also cheered by the fact that neither Roberts nor Alito were willing, during the confirmation hearings, to take some conservative senators’ bait and disavow the constitutionality of the Supreme Court’s seminal privacy decision, Griswold v. Connecticut, which freed doctors to prescribe birth control devices for their patients.

But for many, it’s the big picture that is particularly troubling. The Senate’s failure to uphold the attempted filibuster of Alito’s nomination, by a 58-42 vote on Jan. 30, bodes poorly for "the American experiment" for at least two reasons. First, it suggests that the Democrats are, and will be until at least the next Congress, unable to stop the elevation of clearly unqualified candidates to high judicial positions. Beyond Alito, there are still several vacancies on the federal district and appellate benches; the likelihood exists that either Justice John Paul Stevens or Justice Ruth Bader Ginsburg will leave the court in the near future, for age and/or health reasons, and the Democrats’ ability to prevent a near-automatic rubberstamping of Bush nominees by the Senate seems vanishingly small.

Second, and perhaps worse, the failed filibuster points up deep divisions within the Democratic Party, where four Democratic senators actually voted to affirm the nomination, and several Democrats who voted against Alito nonetheless refused to support the filibuster, most likely because they were afraid that if they had, such actions would be used against them by Republican spinmeisters in upcoming elections. In other words, they abandoned principled positions out of fear of losing their Senate seats – a cowardice that is not only unseemly for a federal legislator but is also tantamount to a violation of their oath of office.

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