Some of the themes employed by groups opposing the Alito nomination were also invoked against John Roberts during his confirmation process. It was predicted that each nominee would turn back the clock on civil rights, eviscerate Roe v. Wade, tip the Court radically to the right without due regard for the rule of law, and be an unsuitable replacement for Justice Sandra Day O’Connor, who, since the announcement of her retirement, has been accorded strange new respect.
The methodology employed by Judge Alito’s opponents is also similar to that used against Justice Roberts: Conflate their records as advocates in civil-rights cases with their probable jurisprudence as justices on the Supreme Court. And for good measure, contend that their positions on civil-rights issues, as compared to the positions of Justice O’Connor, are extreme.
These themes and methodologies failed to gain traction against John Roberts. They will also fail against Judge Alito, quite simply because they have no factual or logical bases.
Judge Alito to the extreme right of Justice O’Connor?
The most recent claim against Judge Alito is that his advocacy record before the Supreme Court during his tenure in the Reagan-administration solicitor general’s office shows that he’s to the extreme right of Justice O’Connor, particularly on matters pertaining to affirmative action. For example, People for the American Way declares “Alito’s record strongly suggests that if he had been on the Court instead of O’Connor, affirmative action by government institutions would have been completely prohibited instead of being preserved.” (Emphasis added.) The NAACP Legal Defense Fund maintains that “During [Justice O’Connor’s] long tenure on the Court, she has cast significant votes in many decisions to uphold affirmative action.” And the National Congress of Black Women contends that “If he is confirmed to replace Justice O’Connor, Judge Alito will almost certainly, based upon his past performance, shift the current 5-4 balance on the court on affirmative action.” (Emphasis added.)
Notwithstanding the fact that positions espoused as an advocate are poor proxies for interpretive doctrine, there are numerous problems with the allegation that Judge Alito is to the extreme right of Justice O’Connor on civil rights, not the least of which is that Justice O’Connor agreed with Judge Alito’s advocacy position 75 percent of the time, more than any other Supreme Court Justice before whom Judge Alito appeared.
Moreover, while Judge Alito’s opponents now embrace Justice O’Connor as a champion of racial preferences, a critical review of her 25-year career on the Court, demonstrates that she was hardly a reliable vote in favor of affirmative-action programs (with the admittedly significant exception of Grutter v. Bollinger). Indeed, Justice O’Connor authored two of the most significant preference cases decided by the Court: Richmond v. Croson and Adarand Constructors v. Pena. The latter resolved once and for all that the use of racial classifications by state or federal actors, whether for benign or invidious purposes, triggers strict judicial scrutiny. Moreover, in Gratz v. Bollinger, Justice O’Connor voted to strike down the University of Michigan’s undergraduate racial-preference admissions program using the very standards she established in Grutter. In fact, Justice O’Connor sat on 15 merit cases adjudicating the constitutionality of affirmative action programs and disfavored those programs in 13. While Justice O’Connor may appear more sympathetic to affirmative action in cases involving justiciabilitiy standards under the Fourteenth Amendment as well as Title VII, she disfavored the use of race-conscious affirmative-action programs in six of eight voting-rights cases.
Advocacy Positions Don’t Equal Interpretive Doctrine
In the three affirmative-action cases in which Alito participated (on brief) during his tenure in the solicitor-general’s office–Wygant v. Jackson Board of Education, Sheet Metal Workers v. EEOC, and Firefighters v. Cleveland (all involving expansive racial preferences as remedies for discrimination), there’s scant evidence that as a Supreme Court Justice Alito would restrict currently available affirmative-action remedies more severely than would Justice O’Connor. In all three cases, Judge Alito essentially argued that rigid quotas are unlawful and that preferences based solely on race or ethnicity must, at a minimum, be based on the beneficiary’s status as an actual victim of discrimination. Even if Alito’s advocacy positions in these three cases were somehow probative of his interpretive doctrine as a judge, it’s interesting to note that his positions weren’t substantially dissimilar from those of Justice O’Connor.
For example, in Wygant v. Jackson Board of Education, the issue was whether the equal-protection clause of the Fourteenth Amendment permits a public entity to grant certain public employees preferential protection against layoff solely on the basis of race or national origin where there is neither a finding nor evidence that the employees have been discriminated against by such entity. Alito argued that such a layoff provision violates the equal-protection clause, failing to withstand strict scrutiny. Justice O’Connor agreed.
In Sheet Metal Workers v. EEOC, the issue was whether, in crafting remedies under Title VII, a court may award preferences based solely on race or ethnicity, rather than on the beneficiary’s status as an actual victim of discrimination, and whether such remedies are unconstitutional. The case also contained myriad important sub-issues. In Sheet Metal Workers, Justice O’Connor didn’t hold in favor of Alito’s general advocacy interest, but was favorably disposed to Alito’s position regarding the issue of rigid, over-inclusive racial preferences as a remedy for non-victims under Title VII.
In Firefighters v. The City of Cleveland, the issue was whether a judgment entered with the consent of a defendant public employer in an action brought under Title VII may award racial preferences and promotions to persons who aren’t the actual victims of such employer’s discriminatory conduct. Alito argued in the negative. In that case, Justice O’Connor disagreed with Alito’s advocacy interest.
Again, even if Alito’s advocacy positions are predictive of his judicial decisions, the mixed record described above fails to demonstrate extreme doctrinal differences with Justice O’Connor on affirmative action. Rejection of quotas and expansive racial preferences doesn’t evince hostility toward affirmative action, let alone civil rights in general.
Judge Alito’s measured and restrained approach to racial preferences and affirmative action is exhibited in his record on the Third Circuit. In Judge Alito’s only affirmative-action case involving race, Taxman v. Board of Education of the Township of Piscataway, he joined eight Third Circuit judges in holding that a school board violated Title VII when it used its affirmative action plan to grant a non-remedial workforce preference by laying off a teacher in order to promote racial diversity. (It should be noted that the Clinton Justice Department concurred with the majority position.)
Judge Alito’s approach to affirmative action, as well as other civil-rights issues, is methodical and precise, producing closely circumscribed opinions respectful of the interests of civil-rights claimants without compromising precedent or the rule of law. His extensive body of judicial opinions emphatically demonstrates that he won’t convert the bench into a platform for the promotion of policy preferences.
–Peter Kirsanow is a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the position of the commission.