Although Alito is more qualified for the position than the previous nominee, Harriet Miers, this not saying much. To be even considered for the Supreme Court, a person needs far more experience in constitutional law and jurisprudence than Miers had. Bush’s efforts to lower the bar with her nomination should not invite praise for Alito for being something more than a tail-wagging Bush crony.
Alito is the wrong man for the job because he is a conservative ideologue. We fear that, given the chance, he would overturn basic legal protections and reshape the scope of the U.S. government. Several of Alito’s past opinions lead us to this conclusion.
The most incendiary—although not most extreme—example of Alito’s radicalism is his dissent in the 1991 abortion rights case, Planned Parenthood of Southeastern Pennsylvania v. Casey. He supported a law that mandated that wives receive their husbands’ permission to seek abortions. This law would have subjected battered women to further abuse from their spouses, and the Supreme Court rightly rejected it as an “undue burden” on the right to get an abortion. Nothing short of a woman’s right to choose is at stake here.
Much has been made of the fact that Alito concurred with the 2000 opinion Planned Parenthood v. Farmer, which struck down a partial-birth abortion ban. But he was simply following the precedent of the Supreme Court’s ruling from earlier that year in Stenberg v. Carhart. We disagree that this concurrence demonstrates any sort of moderation in Alito’s views on abortion rights.
Many of his other opinions—on civil rights, environmental protections, and gun control—are ultra-conservative and equally disturbing.
In Chittister v. Department of Community and Economic Development, Alito ruled that the federal government could not force state governments to comply with the Family and Medical Leave Act. Even Rhenquist was opposed to that position, and the Supreme Court overturned Alito’s opinion.
On civil rights, Alito’s dissents in two other cases show that he would impose almost impossible evidentiary burdens on plaintiffs in race and sex discrimination cases. He also wrote an opinion in which he found it permissible for a prosecutor, trying a black man for murder, to assemble an all-white jury by striking all the prospective black jurors.
On gun control, Judge Alito dissented from a third Circuit ruling that allowed Congress, under the Commerce Clause, to restrict possession and sale of machine guns at gun shows.
On environmental protections, Alito blocked the right of citizens to take polluters to court under the Clean Water Act, and he threw out a $2.6 million fine against a chemical company for violating the Act.
Alito wrote these decisions based on his philosophy that the Constitution does not allow the federal government to protect individual rights in the way that the current Court has interpreted it. We were optimistic about the nomination of Chief Justice John G. Roberts ’76 because of his seeming lack of ideological approach. Alito, however, shares a radical conservative philosophy with Justices Antonin Scalia, Clarence Thomas, and failed Supreme Court nominee Robert Bork.
In light of the fact that Alito has been nominated to replace Justice Sandra Day O’Connor, whose position as a swing-vote made her opinion critical in many decisions, it is even more critical that Senate Democrats and Republicans reject Alito. Yet, even without such considerations of balance on the Court, his record is more than a sufficient basis for our opposition.
The U.S. is a safer, healthier, and fairer place to live in than it was 50 years ago, due in large part to the Court’s affirmation of fundamental constitutional rights. Since then, civil-rights legislation, environmental protection, and legal abortion have contributed to the progress of our society. People who oppose such core rights and protections have no place on the Supreme Court.