DESPITE THE HISTRIONIC RHETORIC EMANATING FROM THE LEGAL LEFT on the apocalyptic consequences of his confirmation to the Supreme Court, Judge Samuel A. Alito Jr. – in addition to being an eminently qualified Originalist jurist – has another attractive attribute: a history of favoring the rights of minorities. In his 15 years on the Third Circuit Court of Appeals, Alito has compiled a reputation for safeguarding the rights of blacks, religious minorities, and persecuted women that would be the envy of any left-winger.
As a federal appeals judge, Alito ruled in favor of Ronald A. Williams, a black man serving life in prison for first-degree murder, who had discovered evidence that one of his jurors was racially prejudiced and lied about this during the screening process. Since this evidence only came to light after Williams’ conviction, Alito gave him a new day in court.
He also showed concern for homosexuals in a 2004 case filed against New Jersey’s Shore Regional High School Board of Education. Alito ruled the high school had failed in its duty to provide a male student an adequate education by failing to protect him from years of brutal harassment, in which bullies regularly belittled his “perceived effeminacy,” slurring his assumed sexuality. Alito sent a clear message that he would have zero tolerance for any school district that looked the other way while students vicious bullied one of their own, even if that hazing were conducted on the basis of homosexuality (real or imagined); gay kids have the right to an education, too.
However, Alito’s most notable ruling came in the groundbreaking case Fatin v. INS, which established the rights of women who refused to wear traditional Islamic dress, such as the burqa, in their homelands. Alito determined, for the first time, that women who have reason to believe they would be persecuted for not abiding by medieval Koranic dress codes could be granted asylum in the United States. One law review article commented, “Fatin v. INS was a stepping stone for Iranian women. It finally showed an international awareness of repression on the basis of gender persecution.” Unlike liberal jurists, though, he set the bar high enough that “persecution” means “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.”
He has, in other venues, shown appreciation for the rights of Muslims – Sunni Muslims, specifically (a fact that should not be lost on our leftist friends, who counsel Bush to establish cordial relations with Sunnis in Iraq). Alito rebuked a police department for forcing Muslim officers to shave their beards, which violated their religious consciences.
In fact, Alito has a stellar record on Freedom of Religion in general, siding against the ACLU‘s full-time grinches in a Nativity scene case, ACLU v. Schundler. He likewise ruled Christian afterschool clubs should be able to set up tables at school events, and religious students should be able to express their faith openly in their words and artwork.
Somehow this compassionate record has failed to impress the legal far-Left or make front page news. Instead, the media report:
“Liberals are quietly delighted by a nominee who has the ability to unite all of the groups in opposition,” said Jonathan Turley, a law professor at George Washington University. “Not since Bob Bork have you had a nominee who has the ability to coalesce all these groups.”
Alito is the first nominee to unite leftist groups in opposition since the last one. PAW, NOW, and the Legal Left’s usual suspects opposed Roberts, too. And Souter. And Kennedy. And Rehnquist. And Stevens….
Alito’s record be damned, the Legal Left is going for a full-scale Borking.
The Politics of Personal Demonization
The Nation’s David Corn has advised the Democrats to wage a war against Alito’s judicial philosophy, as his qualifications are unassailable. It appears the party’s base has instead opted to smear him in every conceivable way.
The usual suspects are leading the way. Ralph Neas of People for the American Way has said, if confirmed, Judge Alito would – wait for it – “turn back the clock” on “privacy issues, civil rights issues, environmental protection and a woman’s reproductive freedom and reproductive health…he could literally be a walking constitutional amendment, turning back the clock on a wide array of issues going back decades.” Neas advised Democrats that “all parliamentary procedures, including the filibuster, should be available for use against the nomination.”
Nan Aron of the Alliance for (In)Justice, emoted – before Bush had even named Alito as Miers’ replacement – “I’d say this is a very grim and dangerous moment for the courts and this country.” Alliance for Justice has since launched a website of perpetual inquisition against Alito and his allies.
Duke University Law professor Erwin Chemerinsky concurred, “Samuel Alito…almost certainly would be a vote on the Supreme Court to undermine basic constitutional rights which have been protected for decades.”
The George Soros-funded website MoveOn.org has drawn up a petition to oppose Alito’s confirmation. In its typically understated way, the website that once ran an ad comparing President Bush to Hitler insisted:
[I]f Alito were on the Supreme Court he would pose a grave threat to the basic rights of working families…if he were on the Supreme Court he could turn back the clock on decades of progress in securing civil rights for minorities and the disabled…If Alito were on the Supreme Court, reproductive freedom would be in serious jeopardy…[I]f he were to join Thomas and Scalia on the Supreme Court he would pose a grave threat to civil liberties and individual freedoms.
Something called “Think Progress” went a step further, featuring the headline: “ALITO HOSTILE TOWARD IMMIGRANTS.” (Emphasis in original.) That would come as news to his father, an Italian immigrant.
Although the intimation that Democrats were playing on anti-Italian sentiment to spike Alito’s nomination brought the Left’s flagship blog, the DailyKos, to post a profanity-laden death threat, MSNBC’s Chris Matthews revealed the Democratic Party is in fact exploiting Italian stereotypes in a new flyer insinuating Alito failed to convict an Italian mobster for reasons of ethnic solidarity – a flyer Matthews described as “ugly,” “disgusting,” and “amazingly bad politics.”
The Left will not likely focus on Alito’s ethnicity – although his Roman Catholicism may, like that of John Roberts and William Pryor, become a point of left-wing demagoguery. Instead, Ralph Neas outlined the plan of attack on the talk shows last night: civil rights, women’s rights, and a series of court cases he hopes to misrepresent in the mainstream media. Four of these have already surfaced in the Legal Left’s talking points:
Machine Gun Alito
In left-wing talking points, Alito supposedly ruled against the federal regulation of machine guns. This is an idiot’s caricature of his position, which rested on the common sense conclusion than an intrastate transaction was not covered by interstate statutes. The machine gun case, United States v. Rybar, concerned the federal government’s ability to restrict sales of machine guns based on the Interstate Commerce Clause. However, in the case in question, a sale had been made from one Pennsylvanian to another, an intrastate transaction in which this clause was clearly inapplicable. In his dissent, Alito clearly announced he was not rendering federal or state government impotent to ban automatic weapons:
This would not preclude adequate regulation of the private possession of machine guns. Needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done.
As this cause is regularly invoked to give the federal government near-omnipotent regulatory power, Alito warned that giving it wider application “leads to the conclusion that Congress may ban the purely intrastate possession of just about anything. But…Congress’s power under the Commerce Clause must have some limits.” Alito’s decision was intended to bind the feds with the iron chains of the Constitution.
“He’ll Strip-search Your Ten-year-old”
John Roberts ruled against a girl who ate french fries in a subway; Sam Alito allegedly gave police the right to strip-search ten-year-old girls. However, a look at his dissent on Doe v. Groody reveals this tough former prosecutor understands how to read a warrant better than many of his peers.
In the case, police officers had applied for a warrant in their investigation of a suspected methamphetamine dealer. They searched the dealer (“John Doe”), his wife, and their ten-year-old daughter, who then sued. In their underlying affadavit, police specifically asked three times for permission to “search all occupants of the residence and their belongings.” The warrant – which was typed by one of the officers – named John Doe and gave a description of his home. Thus, Alito ruled, “the best reading of the warrant is that it authorized the search of all persons found on the premises.” Alito reasoned that these non-lawyers thought they had written the warrant broadly enough to search everyone. Disgusting as it is, drug dealers regularly hide their goods on, or in, houseguests, including underage children; thus, the police had probable cause to believe they might find contraband on the child. Alito did not offer carte blanche for police to strip-search children, but he believed – as any reasonable person would – that “all persons” means “all persons.” This is exactly what one would expect from a tough former U.S. Solicitor General who focused on busting gangsters and drug-dealers.
“The Fifth Vote to Overturn Roe”
The 800-pound elephant in the nomination process is, as ever, abortion, especially since Alito upheld a Pennsylvania law in a move the Supreme Court eventually overturned in 1992’s Casey v. Planned Parenthood. Karen Pearl, a spokeswoman for that august group, claimed Alito’s dissent “treats women very much as children. Women’s autonomy to make personal and private decisions is taken away from them.” The law would have treated women like adults, requiring doctors to give them information about the baby’s development, as well as the medical effects of carrying the child to term.
As for removing “women’s autonomy,” Pearl and others objected to a 24-hour waiting period (although they have no objection to waiting periods for gun purchases) and another statute that would inform the husbands of married women in advance, giving husbands an opportunity to discuss this personal decision with their wives.
However, the law required spousal notification, not consent. Chief Justice William Rehnquist noted in his dissent that the law waived even the requirement of notification:
if (1) her husband is not the father, (2) her husband, after diligent effort, cannot be located, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) the woman has reason to believe that notifying her husband is likely to result in the infliction of bodily injury upon her by him or by another individual. In addition, a woman is exempted from the notification requirement in the case of a medical emergency.
On the basis of this ruling, the extremist abortion lobby – which opposes any form of restriction on abortion, including Partial Birth Abortion bans, parental consent and notification laws, waiting periods, or informing women of the potential health risks an abortion poses – claims Alito wants to force women to return to the days of coat hanger harikiri.
This overlooks, among other things, Alito’s record. Five years ago, he sided with the majority in deeming a New Jersey law banning Partial Birth Abortion unconstitutional, because it did not provide an exception for the health of the mother – a loophole so vague it can be used to justify an abortion in nearly any situation. (E.g., some have included “mental health,” claiming women would slip into deep depression without the relief an abortion provides. The reality is the opposite.) Moreover, Alito indicated to Senator Arlen Specter that he considers some precedents more binding than others, which Specter has taken as a possible endorsement of Roe.
Actually, provided he does favor overturning Roe (by no means a certainty), Alito would be the third or fourth vote to do so: Justice Kennedy upheld Roe in Casey, and it would not be surprising to find Chief Justice Roberts agreeing with him in the coming days. In any event, overturning Roe would merely allow each state to regulate abortion on its own. It is inconceivable that, say, Vermont would force women into back alleys – but that doesn’t make for exciting fundraiser copy.
Discriminating Against Discrimination Cases
Finally, the Legal Left claims Alito opposes civil rights, as demonstrated by his treatment of anti-discrimination cases. In Alito’s 1996 Sheridan v. Dupont dissent, he stated, in essence, that businesses should be considered innocent until proven guilty in discrimination cases. At one point, such lawsuits could move forward if the plaintiff cast a shadow of a doubt upon the business’s conduct; judges came to demand “pretext-plus” – that the discrimination claim have factual as well as theoretical merit. Alito’s dissent would spare private businesses – and the public – costly nuisance suits. If actual merit can be shown, Alito has shown he’s opposed to any form of discrimination, even in his area’s secondary schools.
The Alliance for Justice also criticized Alito’s vote with the color-blind majority in Taxman v. Board of Education of the Township of Piscataway, which censured that school district for firing a teacher on the basis of her race: She was white; the teacher they retained in her place was black.
As noted, the Legal Left has already attempted to demonize this tough immigrant’s son. Don’t fall for the Left’s unconscionable misrepresentation of his rulings – and don’t forget the noble substance of his record.
This article originally appeared as the lead story on Tuesday, November 1, 2005, on FrontPage Magazine.