Bench Memos

Fight to the Defeat!, Left Says

People for the American Way:

For Immediate Release Contact: Laurie Boeder, 202-467-2306

Monday, October 31, 2005 Peter Montgomery 202-467-2388



PFAW will wage massive national effort to defeat nominee

who would dramatically shift balance of Court

President Bush put the demands of his far-right political base above Americans’ constitutional rights and legal protections by nominating federal appeals court Judge Samuel Alito to replace retiring Supreme Court Justice Sandra Day O’Connor, said People For the American Way President Ralph G. Neas. “Right-wing leaders vetoed Miers because she failed their ideological litmus test. With Judge Alito, President Bush has obediently picked a nominee who passes that test with flying colors.”

“We had hoped President Bush would nominate someone with a commitment to protecting Americans’ rights and freedoms,” said Neas. “That’s what the American people want, and it’s what they deserve. Unfortunately, with Judge Alito, that’s not what President Bush has given us. He has chosen to divide Americans with a nominee guaranteed to cause a bitter fight.”

Neas said that People For the American Way will mobilize its 750,000 members and activists to wage a massive national effort to defeat Alito’s nomination and will work closely with its coalition partners to educate Americans about the threats posed by this nomination.

“Replacing a mainstream conservative like Justice O’Connor with a far-right activist like Samuel Alito would threaten Americans’ rights and legal protections for decades,” said Neas. “Justice O’Connor had a pivotal role at the center of the Court, often providing a crucial vote to protect privacy, civil rights, and so much more. All that would be at risk if she were replaced with Judge Alito, who has a record of ideological activism against privacy rights, civil rights, workers’ rights, and more.”

Neas said the President’s capitulation to the far right demonstrates the importance of our system of checks and balances and the importance of the Senate’s role in that system. “President Bush wasn’t willing to stand up to the far right, so Americans must count on senators to stand up for the Constitution,” said Neas. “Americans will have to live with the next justice long after President Bush has left office.”

Neas called on senators from both parties to take seriously their obligation to make a careful independent evaluation of the nominee’s record and judicial philosophy, especially given the red flags raised by Judge Alito’s record. “It is senators’ duty not to act as rubber stamps for the President’s nominees, but to examine all the evidence about the nominee’s record and make an independent judgment. We are confident that a careful examination of Samuel Alito’s record and judicial philosophy will ultimately lead to his rejection by the Senate.”

A preliminary report on Alito’s record is available from People For the American Way. Highlights of that record are included below.

Leading a Revolution Against Laws Protecting Individual and Other Rights

Alito is a leader of the radical right legal movement to prevent the federal government from enforcing civil rights protections and otherwise acting on behalf of the common good. According to one of Alito’s opinions, Congress had no authority to require state employers to comply with the Family and Medical Leave Act through payment of damages when they violate the law, a ruling that was repudiated by the Supreme Court. The late Chief Justice Rehnquist, a fellow ultraconservative, wrote the court’s decision. Alito also dissented from a ruling by the Third Circuit that Congress has the power under the Commerce Clause to restrict the transfer and possession of machine guns at gun shows.

Against Basic Protections for Workers

Alito’s record shows an alarming trend toward standing against protections for workers. In a number of dissenting opinions, Alito has taken positions that, if adopted, would have made it more difficult for victims of race and sex discrimination to prove their claims. In one case involving claims of race discrimination, the court majority sharply criticized Alito’s dissent, stating that his “position would immunize an employer from the reach of Title VII” in certain circumstances.

Hostile to Privacy and Reproductive Rights

Alito wants government to be able to interfere in personal decisions on reproductive rights. In one case, Alito attempted to uphold a provision of Pennsylvania’a restrictive anti-abortion law requiring a woman in certain circumstances to notify her husband before obtaining an abortion. Alito’s colleagues on the Third Circuit and Supreme Court disagreed, and overturned the provision.

Fails to Consider Racial Discrimination in Capital Punishment

In one case that came before Alito, an African American had been convicted of felony murder and sentenced to death by an all-white jury from which black jurors had been impermissibly struck. Alito cast the deciding vote and wrote the majority opinion in a 2-1 ruling rejecting the defendant’s claims. The full Third Circuit reversed Alito’s ruling, and the majority specifically criticized him for having compared statistical evidence about the prosecution’s exclusion of blacks from juries in capital cases to an explanation of why a disproportionate number of recent U.S. Presidents have been left-handed. According to the majority, “[t]o suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants.”

The Future of the Supreme Court

The current vacancy on the Supreme Court is the second this year, and additional vacancies may occur in the next few years. Many important cases in recent years have been decided by just one or two votes, often with Justice O’Connor casting a decisive vote to uphold critical rights and liberties. Confirming additional far-right judicial activists like Samuel Alito to the Court would threaten hundreds of Supreme Court decisions that protect privacy, civil rights, religious liberty, reproductive choice, clean air and water, worker rights, consumer safety, educational opportunity, and much more.

“We are going to make sure that Americans understand what is at stake,” said Neas, “and how President Bush’s nomination of Samuel Alito threatens fundamental rights and legal protections.”

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