Bush Taps "Scalia-Lite" to Replace O'Connor
From: http://www.truthout.org/docs_2005/110105I.shtml
Tuesday 01 November 2005
On the day we honored Rosa Parks, Mother of the Civil Rights Movement, George W. Bush appointed a white male to replace
Sandra Day O'Connor on the Supreme Court. Evidently unable to find a woman or Latino sufficiently "qualified" to sit on
the high court, Bush reached deep into the trough of right-wing federal judges and pulled out Samuel Alito.
On Friday, at 12:40 p.m., the same hour that Patrick Fitzgerald announced the indictment of I. Lewis "Scooter" Libby,
Bush called Alito. Desperate to stop the hemorrhaging from the withdrawal of Harriet Miers, the grim revelation that the
2000th American soldier had died in his unnecessary war in Iraq, and the pending indictment of a principal White House
neocon, Bush tapped a judge adored by the right wing.
The conservatives' giddy reaction to the nomination of "Scalito" or "Scalia-Lite," as Alito is frequently called
because of his affinity with Antonin Scalia, stands in stark contrast to that of the more moderate Miers. His record
tracks the right-wing agenda.
Alito would gut abortion rights if given the chance. As a judge on the Third US Circuit Court of Appeals in
Philadelphia, he voted in Planned Parenthood v. Casey in 1991 to uphold a Pennsylvania law that included a provision
requiring women seeking abortion to notify their spouses. When the case reached the Supreme Court, the justices used it
to reaffirm Roe v. Wade. Justice O'Connor wrote the decision, which struck down the state's spousal notification
requirement. In his dissent in Casey, Chief Justice William Rehnquist quoted Alito's dissent from the lower court
opinion.
But Alito's right-wing bona fides don't stop there. Alito engages in "judicial restraint" - the right wing's stated
litmus test - only when the conservative ends justify the means. He showed little restraint when he voted to scuttle
Congress's intent by making it much harder for civil rights plaintiffs to prove sex and race discrimination. In one
case, Alito's colleagues on the Third Circuit observed that the federal law prohibiting employment discrimination "would
be eviscerated if our analysis were to halt where [Judge Alito] suggests."
Alito voted to invalidate part of the Family and Medical Leave Act, which guarantees most workers up to 12 weeks of
unpaid leave to care for a loved one. The 2003 Supreme Court decision in Nevada v. Hibbs upheld the FMLA, essentially
reversing a 2000 opinion by Alito which found that Congress had exceeded its power in passing the law.
In Erienet v. Velocity Net, Alito dissented from an opinion that makes it easier for consumers to get relief in state
courts for violation of the Telephone Consumer Protection Act.
Samuel Alito has also shown hostility to privacy rights by supporting the unauthorized strip searches of women and
children who are not named in a search warrant. He voted to uphold the strip search of a mother and her 10-year-old
daughter in Doe v. Groody in 2004. That vote drew harsh criticism from Bush's current Homeland Security Director Michael
Chertoff, who was on the Third Circuit at the time. Chertoff accused Alito of rubber-stamping police misconduct. Alito's
excessive deference to executive power in Groody could signal his willingness to defer to the power of the executive in
Bush's wars on Iraq, terror and civil liberties. This is cause for great concern.
In 2001, Alito authored a decision that struck down a public school district's policy that prohibited harassment
against students based on their sexual orientation. The policy focused on harassment that might interfere with a
student's educational performance or create an intimidating, hostile or offensive environment. But Alito ruled this
policy was unconstitutional because it could cover "simple acts of teasing and name-calling."
Alito pandered to the gun lobby when he voted to strike down a federal law prohibiting the possession of machine guns.
His position led Alito's colleagues to accuse him of disrespecting the considered decision of Congress by requiring it
to "play 'Show and Tell' with the federal courts."
Several progressive organizations, including the National Lawyers Guild (NLG), the AFL-CIO, NARAL-Pro Choice America,
the Alliance for Justice, MoveOn.org and the Leadership Conference on Civil Rights are opposing the Alito nomination.
NLG President Michael Avery stated, "Judge Alito's record on the Third Circuit Court of Appeals is replete with examples
of how his extremely conservative views have led to decisions that ignore the legitimate interests of women, families,
people of color, consumers and working people. These decisions run contrary to established Supreme Court precedent and
the will of the Congress."
Alliance for Justice President Nan Aron said, "If confirmed to the pivotal O'Connor seat, Judge Alito would
fundamentally change the balance of the Supreme Court, tipping it in a direction that could jeopardize our most
cherished rights and freedoms." Karen Pearl, interim president of Planned Parenthood Federation of America, agreed.
Alito's confirmation "would radically transform the Supreme Court and create a direct threat to the health and safety of
American women," she said.
Key Democrats immediately stepped up to the plate and challenged the Alito nomination. Senate Democratic Leader Harry
Reid said, "Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because
she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the
American people." Reid also criticized Bush's selection of another white male: "This appointment ignores the value of
diverse backgrounds and perspectives on the Supreme Court. The President has chosen a man to replace Sandra Day
O'Connor, one of only two women on the Court. For the third time, he has declined to make history by nominating the
first Hispanic to the Court ... President Bush would leave the Supreme Court looking less like America and more like an
old boys club."
Senator Patrick Leahy said, "Judge Alito's record on the bench demonstrates that he would go to great lengths to
restrict the authority of Congress to enact legislation to protect civil rights and the rights of workers, consumers and
women. Judge Alito has also set unreasonably high standards that ordinary Americans who are the victims of
discrimination must meet before being allowed to proceed with their cases."
Other Democrats have reacted similarly. Senator Ted Kennedy said, "If confirmed, Alito could very well fundamentally
alter the balance of the court and push it dangerously to the right, placing at risk decades of American progress in
safeguarding our fundamental rights and freedoms." Senator Charles Schumer observed, "It's sad that [Bush] felt he had
to pick a nominee likely to divide America." Senator John Kerry asked, "Has the right wing now forced a weakened
President to nominate a divisive justice in the mold of Antonin Scalia?" And Senator Barak Obama said, "President Bush
has ... made a selection to appease the far right wing of the Republican Party."
The precariously balanced Supreme Court will tip to the right if Alito is confirmed. Larry Lusberg, a former federal
prosecutor who has known Alito for 22 years, affirms: "Make no mistake: he will move the court to the right, and this
confirmation process is really going to be a question about whether Congress and the country want to move this court to
the right."
With his nomination of Samuel Alito, Bush has thrown down the gauntlet. Although many Democrats are vociferous in their
displeasure, it is not clear that 41 of them will agree to a filibuster. Several must stand for election next year in
red states, and Alito's intellect and credentials - notwithstanding his radical ideology - may sway them in his
direction. If the Democrats do filibuster, it will force the Republicans to use the "nuclear option" to override the
time-honored filibuster for the first time.
As the Libby indictment continues to put on trial the lies on which the Iraq war was based, Bush's agenda - including
the Alito nomination - may be hobbled.
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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.