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Let’s hear it for Protestant fundamentalists (American variety) yet again. Was there ever a more pragmatic bunch? After centuries of howling No Popery and denouncing the Whore of Rome, they’re now trying to give us a US Supreme Court that will, in the probable event of Alito’s confirmation, boast no fewer than five Roman Catholics, a clear majority: in order of arrival on the bench: Scalia, Kennedy, Thomas, Roberts and, most likely, Alito.
You can see why the conservative Christians don’t trust Protestants when it comes to matters of Choice or any of their other cherished issues. The two Protestants on the Supreme Court are the Justices they hate most: a liberal Republican, John Paul Stevens and a libertarian, David Souter.
So Alito comes to us more or less from the same mold as Roberts: a tightly-wound Catholic in his mid-fifties, educated at an Ivy League school, seasoned in the Reagan Justice Department, specifically in the office of the Solicitor General, meaning that both Roberts and Alito were part of the core legal team pressing Reagan’s counter-revolution against civil rights laws. They both ended up on the federal appeals court.
One difference is that after his stint in the Solicitor General’s office, Alito had sufficiently impressed the Reaganites to get appointed US Attorney for New Jersey, where he sharpened his claws as a federal prosecutor.
There’s been sedate talk in the mainstream press about Alito’s legal caution, his sense of fairness, his steady temperament, his understated humor, his respect for the law as the executive instrument of fairness in American society. How anyone can come to this bizarre conclusion passes our understanding. Alito’s record, from inside the prosecutor’s office, his justice department briefs and in his judicial opinions, displays a rancid right-winger whose views fume with prejudice against the weak and the poor.
Some samples of the "even-handed", "legally cautious" Alito:
In 1986, Alito helped write a opinion that employers could legally fire AIDS victims because of a "fear of contagion, whether reasonable or not." Alito honed a new edge to the notion of strict constructionism by arguing that the employers were justified in so doing because discrimination based on insufficient medical knowledge was not prohibited by federal laws protecting the disabled.
In other words, irrational popular hysteria (that for example you could get AIDS from touching a door knob also touched by an AIDS victim) was in Alito’s view an entirely sound basis for breaching legal protections. Years later Alito was still defending this position, saying that the tide of science may have subverted the hysteria but nonetheless it hadn’t shaken "our belief in the rightness of our opinion".
Somewhat in the same vein, in 2001 Alito wrote a majority Appeals court opinion striking down a public school policy prohibiting harassment against gay students. Alito bluffly tore down the policy, saying it interfered with the First Amendment rights of other students to engage in "simple acts of teasing and name calling".
In 2003, when Alito was serving on what the Washington Post bizarrely describes as "the left-leaning" Third Circuit, he actually managed to outflank Judge Michael Chertoff from the right. Chertoff, (now director of Homeland Security and noted defender of torture and of holding so-called enemy combatants, without access to attorneys or judicial review) wrote a majority opinion in Doe v. Groody ruling that a search warrant should be confined only to the person named on that warrant.
Alito brushed such pettifogging notions aside, arguing for the minority opinion that the cops (in this case in Schuykill county, PA) would be severely hampered if they had to interpret any search warrant in its written terms, rather than having the power to infer that such warrants gave police the power to search anyone else with the misfortune to be in the vicinity. In the case under consideration, the Schuykill police had strip-searched not only the suspect but also a mother and her 10-year-old daughter who lived in the same house.
Also in 2003 Alito wrote a majority opinion approving the conditions for probation laid down by the state of Delaware on a man who had pled guilty to possession of child pornography, said conditions being his agreement to undergo random polygraph tests.
It’s a prime function of the so-called "left-leaning" Third Circuit to attend to the interests of big business, massed in its Delaware corporate enclave. Here Alito joined Roberts in his deference to the Money Power, slashing away at the ability of stockholders to launch class action suits, or employees to litigate against racist treatment.
In all, Judge Alito has issued 700 opinions, most of them on business/labor issues. All of these have been, in the opinion of the US Chamber of Commerce, home runs for the Business Team.
In 2001 Alito wrote a majority opinion striking down an EPA order mandating that the W.R.Grace Company clean up drinking water that its fertilizer plant had poisoned in Lansing, Michigan. Alito said the EPA lacked a rational basis for imposing such a costly burden on the company. In a 1997 Appeals Court dissent Alito argued that a black housekeeping manager from Marriott, who claimed she’d been passed over for promotion for racial reasons, had no standing. To allow her to sue, Alito, wrote, was to allow " disgruntled employees to impose the cost of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly."
There’s no doubt that Alito is vehemently opposed to any woman’s right to choose. As his 90-year old mother Rose snapped at reporters the day Bush nominated him, "Of course he’s against abortion.
Alito’s 1991 Appeals Court minority opinion on abortion has been widely publicized, and rightly so. The issue before the Appeals Court was the constitutionality of a Pennsylvania law saying that a woman had to inform her spouse of an impending abortion.
The actual case concerned a woman terrified that her abusive partner would beat her up if she so informed him. Alito’s arguments were rejected by US Supreme Court Justice Sandra Day O’Connor who staked out her own ground with a tart dismissal: "The state may not give to a man the kind of dominion over his wife that parents exercise over their children."
Liberals now girding themselves for a showdown over the nomination have an inconvenient skeleton to deal with. When New Jersey’s two Democratic senators — Bradley and Lautenberg — glowingly ("an accomplished and distinguished lawyer") presented Alito to their colleagues on the Senate Judiciary committee in April 1990, the room hummed with good vibrations.
Kennedy warmly praised President George H.W. Bush’s nominee, and said he was "sure" Alito would be a successful judge. Though they had his record in the Solicitor General’s office and as US Attorney before them the committee only asked Alito four questions, before voting to confirm. One of these piercing interrogatories went to Alito’s 4-year old son, coyly (this was Kennedy) asking whether the lad thought his father was judicial timber.
The Democrats claim they’re going to battle Alito down to the wire, but the recent Roberts nomination casts a shadow over this pledge. Senator Leahy of Vermont, the ranking member of the Judiciary Committee, voted for Roberts and so did that hero of the progressive wing of the Democratic Party, Feingold of Wisconsin.
So if any effective undermining of Alito’s nomination is to take place, it will probably come from Republican moderates, the political grouping that has no appetite for a knock-down fight on abortion. Bush needs just such a showdown, to give him a stronger political profile amid his current woes. The Democrats have Choice as almost their sole remaining issue and money raiser. But the Republican moderates who have to face the voters in the mid-term elections next year, know that this issue could mean the difference between victory and defeat. A majority of the American people have no desire to abolish a woman’s right to choose.