Post-Hearing Report on the Nomination of Samuel Alito to the Supreme Court: 'The Wrong Nominee at the Wrong Time'
INTRODUCTION
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Even before Senate Judiciary Committee hearings began, the nomination of Samuel Alito to the Supreme Court had produced significant concern and opposition. Alito's record, beginning even before his 1985 job application for a political position in Edwin Meese's Justice Department, demonstrated a career-long pattern that puts him far to the right of Justice Sandra Day O'Connor, the swing justice on the Court whom he has been nominated to replace, on such key issues as presidential power, Congress' authority to protect Americans, privacy, reproductive rights and health, civil rights, religious liberty, and the environment. Alito's far-right supporters became even more enthusiastic as his record became more clear: Alito's dissents are more conservative than those of even fellow Republican judges 91% of the time;[1] his dissents argue against individual rights 84% of the time;[2] he has sided against 75% of people raising discrimination claims and against immigrants 7 out of 8 times;[3] and he has "seldom sided" with consumers suing big business.[4] As explained by law professor Jonathan Turley, who supported the confirmation of Chief Justice John Roberts, "there will be no one to the right of Sam Alito on this Court," and he is "the wrong nominee at the wrong time in this country."[5]
At his confirmation hearings, Judge Alito not only failed to resolve these concerns, but actually reinforced them. He evaded many questions, and sometimes appeared to mislead the Committee, even with respect to his own cases and opinions. His substantive answers demonstrated that the problems with his record are real, and in fact raised new ones. As one newspaper explained, Judge Alito "did not satisfy concerns that his philosophy has the balance the Court needs," and "we don't want him as a judge" on the Supreme Court.[6]
For example, even apart from his record on particular issues, Alito has been criticized because he "massages" precedents and legal doctrines inconsistently "to make them say what he wants them to say."[7] At the hearing, Sen. Charles Schumer demonstrated that "many of your fellow judges criticized you for ignoring, abandoning, or overruling precedent," and for "disregard of established principles of stare decisis."[8]
The hearing testimony similarly demonstrated Alito's inconsistent application of legal doctrines that, almost inevitably, harms individuals and favors government or large corporations. For instance, Alito testified that he had dissented in one case involving claims of egregious discrimination against a disabled person because he felt the relevant issue had not been adequately raised by the victim's lawyer in his brief and the principle of "judicial self-restraint" required that result.[9] Yet in another case, the majority noted that Alito's dissent in favor of a large corporation against an individual who had suffered serious injury faced an "insurmountable procedural difficulty," because the corporation had never raised the issue relied on by Alito, either at trial or on appeal.[10] In another dissent, Judge Alito claimed at the hearing, he felt it was proper to rely on an argument never raised by a state government against a criminal defendant because of considerations of "federalism" and "comity". Hearing Trans. at 463, 464 (Jan. 12, 2006). But Alito neglected to mention that the majority had specifically rejected that claim, pointing out that "consideration of that other great pillar of our judicial system -- restraint -- cuts sharply in the other direction" so that judges avoid "acting as advocates for the State rather than as impartial magistrates." Smith v. Horn, 120 F.3d 400, 409 (3d Cir. 1997) cert. denied, 118 S. Ct. 1037 (1998).
As the New York Times concluded, Alito's testimony gave Senators clear "reasons to oppose his nomination," including "evidence of extremism," his "opposition to Roe v. Wade," his "support for an imperial presidency," his "insensitivity to ordinary American's rights," and "doubts about nominee's honesty."[11] The Sacramento Bee asked whether members of Congress of both parties will "stand up" against Alito's "corrosive agenda" of limiting Congress' authority while expansively interpreting presidential power and "[i]f not now, when?"[12] The Oregonian raised a new concern, pointing out that Alito testified that the meaning of the Constitution should be interpreted strictly in accord with its text and the "meaning someone would have taken 'from the text' at the time of its adoption," which the paper characterized as an "18th century view" that could "roll back many hard-fought federal protections that Americans enjoy today."[13] Columnist David Broder concluded that the hearings showed Alito would be "the perfect company man who is likely to deliver exactly the kind of conservative rulings Bush prefers."[14] This is because, as the Baltimore Sun explained, despite Alito's "periodic assurances of having an open mind, the disturbing impression from the hearings is that on critical issues such as abortion, civil rights, and the limits of executive power, he does not."[15]
The remainder of this post-hearing report summarizes several major areas of concern about Judge Alito's record that his testimony failed to resolve or exacerbated. These include presidential and executive power, congressional authority, reproductive rights, civil rights and other individual rights claims, and credibility issues. Based on the hearing as well as Judge Alito's prior record, the Senate clearly should reject his confirmation.
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[1] See Transcript of "A survey course on Samuel Alito's legal views," NPR: Morning Edition (Nov. 11, 2005).
[2] Letter from Prof. Cass Sunstein to Sen. Edward Kennedy (Dec. 29, 2005).
[3] A. Goldstein and S. Cohen, "Alito, In and Out of the Mainstream," Washington Post (Jan. 1, 2006).
[4] S. Henderson and H. Mintz, "Review of cases shows Alito to be staunch conservative," Knight-Ridder (Dec. 7, 2005).
[5] Interview with Jonathan Turley, NBC: The Today Show (Oct. 31, 2005)( Transcript available at http://thinkprogress.org/2005/10/31/alito-turley/) (visited Jan. 18, 2006); J. Turley, "Roberts the Elder," Village Voice (Sept. 13, 2005); J. Turley, "Troubling Times, a troubling nominee," USA Today (Jan. 9, 2006).
[6] "Alito wrong for Supreme Court" Grand Forks Herald (Jan. 16, 2006).
[7] J. Bravin, "Alito prefers scalpel to sledgehammer," Wall Street Journal (Nov. 16, 2005) (quoting Professor Robert Post of Yale Law School).
[8] Transcript of the Hearing on the Nomination of Samuel A. Alito, Jr. to be Associate Justice of the Supreme Court, Senate Judiciary Committee, 109th Cong., 2nd Sess. (Hereinafter "Hearing Trans.") at 229, 227 (Jan. 10, 2006).(Citations are to the transcript as published daily in the Washington Post and printed out in a single Word document.)
[9] Hearing Trans. at 253 (Jan. 11, 2006); 462 (Jan. 12, 2006).
[10] Dillinger v. Caterpillar Inc., 959 F.2d 430, 447(3d Cir. 1992); Hearing Trans. at 464-65 (Jan. 12, 2006). Judge Alito could not explain the difference because he testified that he did not recall the Caterpillar case.
[11] Editorial, "Judge Alito in his own words," New York Times (Jan. 12, 2006).
[12] Editorial, "Constitutional powers hanging in the balance," Sacramento Bee (Jan. 15, 2006).
[13] Editorial, "The judge of Bush's dreams," The Oregonian (Jan. 15, 2006) See also "Not fit for the Court," Boston Globe (Jan 14, 2006).
[14] D. Broder, "Bush has found his 'yes man' in Alito," Washington Post (Jan. 15, 2006).
[15] "Not good enough," Baltimore Sun (Jan. 15, 2006).