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Judge Alito may be more Conservative than Scalia
By: George E. Curry
Originally posted 11/1/2005

WASHINGTON (NNPA) – Jonathan Turley, a legal scholar and law professor at George Washington University, says that President Bush’s recent nominee to replace Sandra Day O’Connor may be even more conservative than Antonin Scalia, the conservative court’s most conservative member.

“…There will be no one to the right of Sam Alito on this court…” Turley said Monday in an interview on The Today Show. Katie Couric followed up, “Not even Antonin Scalia?”

Turley: “They’ll have to make a race for the right, but I think it’ll be by a nose, if at all.”
Gary Bauer, a leading conservative and former Republican candidate for president, said on CNN, “I think the president hit a grand slam home run here.”

There are plenty of reasons to make Bauer so effusive that he could infer that a grand slam in baseball could be hit with anything other than a bases-loaded home run.
Alito’s appointment has disappointed progressives.

“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 Ralph G. Neas, president of People for the American Way. “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 had a record of ideological activism against privacy rights, civil rights, workers’ rights, and more.”

A 24-page “preliminary review” of Alito’s record by People for the American Way concludes: “As the following summaries of his opinions reveal, the judicial philosophy of Samuel Alito is far to the right. In fact, he has been given the nickname ‘Scalito’ by some who practice before him and liken him to U.S. Supreme Court Justice Antonin Scalia.

“He has demonstrated hostility toward the principles undergirding a woman’s constitutionally protected right to her own reproductive choices – most notably the Third Circuit’s attempt to limit or overturn Roe v. Wade in the context of the Planned Parenthood v. Casey case.

“In addition, he has issued a number of troubling opinions that seek to undermine established civil rights law, especially in the areas of gender and race, and that seek to severely limit the federal government’s ability to protect its citizens. Alito claimed that the federal government could not apply the Family and Medical Leave Act to state employees, a decision effectively reversed by the Supreme Court, and even argued that Congress could not enact a ban on the possession of machine guns. It is clear that Alito’s confirmation would seriously jeopardize Americans’ rights.”

In a statement announcing PFAW’s opposition to the Alito nomination, the organization cited an example of what it believes is Alito’s racial insensitivity.

“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,” it noted.

“Altio 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 exclusions 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, “to 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.”

While much of the criticism of Alito from liberals have centered around his support of a Pennsylvania law that required women to inform their spouses of their decision to seek an abortion except in limited instances, additional questions have been raised about Alito’s commitment to broadly enforce anti-discrimination laws.

People for the American Way’s research showed: “Alito’s decisions on civil rights raise a number of troubling questions about his commitment to strong enforcement of the nation’s laws intended to protect people from discrimination. In a number of instances, Alito issued opinions that made it far more difficult for victims of discrimination to get to court and prove their cases. Alito’s decisions appear to be especially harsh in the areas of gender and race discrimination, where he has dissented from Third Circuit decisions and sought to make it much harder for victims of race and sex discrimination to prove discrimination.”

Bray v. Marriott Hotels was a case in which an African-American woman had applied for a position that was given to a White woman.

“Her employer, Marriott, did not follow its own guidelines for hiring and several key employees involved in the process gave conflicting statements about how the decision to hire the white woman was ultimately made,” the People for the American Way report noted, summarizing the case. “Bray sued, and the district court ruled for Marriott, holding that Bray had not presented a strong enough case to go to trial. Bray appealed, and a divided three-judge panel of the Third Circuit overturned the district court, holding that Bray should be able to make her case to a jury. Alito dissented from the panel’s decision and would have thrown out Bray’s case.”

Alito’s dissent in the case provides a revealing peek into how he views some anti-discrimination laws.

“I have no doubt that in the future we are going to get more cases where an employers is choosing between competing candidates of roughly equal qualifications and the candidate who is not hired or promoted claims discrimination,” Alito wrote.

“I also have little doubt that most plaintiffs will be able to use the discovery process to find minor inconsistencies in terms of the employer’s having failed to follow its internal procedures to the letter. What we end up doing then is converting anti-discrimination law into a ‘conditions of employment’ law, because we are allowing disgruntled employees to impose the costs of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly. This represents an unwarranted extension of the anti-discrimination laws.”

In selecting Alito, President Bush moved swiftly to pacify the right-wingers in his party.
Under the headline, “Another Lost Opportunity,” the New York Times said in an editorial Tuesday: “…This nomination is yet another occasion to bemoan lost opportunities. Mr. Bush could have signaled that he was prepared to move on to a more expansive presidency by nominating a qualified moderate who could have garnered a nearly unanimous Senate vote rather than another party-line standoff.

He could have sent a signal about his commitment to inclusiveness by demonstrating that he understood his error with Harriet Miers had been in picking the wrong woman, and that the answer did not have to be the seventh white man on the court. But he didn’t, any more than he saw Sept. 11 as an opportunity to build a new, inclusive world order of civilized nations aligned against terrorism.

“Anyone who imagines that the indictment of Lewis Libby and the legal troubles of Karl Rove will be a cue to bring fresh ideas to the White House should read the signs. With more than three years to go in this term, the bottom line is becoming inescapable. Mr. Bush does not want to change, and perhaps is not capable of changing. The final word on the Supreme Court is yet to come, but the message about the presidency could not be more disheartening.”

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