The Corner

“Samuel Alito’s America”

Just so no one would miss the threat of Borking, the Center for American Progress echoes Ted Kennedy’s famous “Robert Bork’s America” speech in its release on the Alito nomination this morning. Its analysis provides a handy talking-points guide to the opposition:

The right wing demanded the withdrawal of Harriet Miers so she could be replaced with a judge who met their rigid, ideological litmus test. This morning, the conservatives got what they wanted. President Bush will nominate Third Circuit Appeal Court Judge Samuel Alito as the replacement for swing-voter Sandra Day O’Connor. (In contrast, John Roberts replaced the very conservative William Rehnquist.) On NBC’s Today Show, law professor Jonathan Turley said there “will be no one to the right of Sam Alito” on the Supreme Court. Alito’s record supports Turley’s view. His history of right-wing judicial activism will be a key issue during his hearings.

ALITO WOULD OVERTURN ROE V. WADE: In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980s. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito’s view and also voted to reaffirm Roe v. Wade. [Planned Parenthood of Southeastern Pennsylvania v. Casey, 1991]

ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by “immuniz[ing] an employer from the reach of Title VII if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias.” [Bray v. Marriott Hotels, 1997]

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito’s dissent was so restrictive that “few if any…cases would survive summary judgment.” Summary judgment allows a case to be dismissed before it goes to trial. [Nathanson v.Medical College of Pennsylvania, 1991]

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) “guarantees most workers up to 12 weeks of unpaid leave to care for a loved one.” The 2003 Supreme Court ruling upholding FMLA [Nevada v. Hibbs, 2003] essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law. [Chittister v. Department of Community and Economic Development, 2000]

ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito argued that police officers had not violated constitutional rights when they strip-searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. [Doe v. Groody, 2004]

ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito’s disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito’s dissent “guts the statutory standard” and “ignores our precedent.” In Ki Se Lee v. Ashcroft, the majority stated Alito’s opinion contradicted “well-recognized rules of statutory construction.” [Dia v. Ashcroft, 2003; Ki Se Lee v. Ashcroft, 2004]

Byron York is is the author of The Vast Left Wing Conspiracy.

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