President Bush nominated Judge Samuel Alito for the Supreme Court to replace the retiring Sandra Day O’Connor. Progressive and LGBT groups quickly criticized Bush for pandering to the Republican party’s right wing which sank his previous Supreme Court nominee Harriet Miers.
Fifty-five-year-old Alito, a Princeton and Yale graduate, was placed on the federal Third Circuit Court of Appeals by Bush’s father in 1990. In that seat Alito gained a reputation as a thoughtful but conservative justice. Some have even called him “Scalito” because his legal arguments resemble that of Supreme Court Justice Anthony Scalia, one of the Court’s most conservative members. Before a judgeship, Alito’s previous experience includes time as a deputy attorney general under Reagan.
However, the justice Alito most resembles now is the recently confirmed Chief Justice John Roberts, who easily passed his confirmation hearings without much Democratic opposition. Alito, like Roberts, is a judge with a substantial conservative record, but one without any obviously definite pronouncements on the issues of abortion, privacy or LGBT civil rights that could generate opposition from Democrats.
But gay and lesbian organizations are already raising the alarm about Alito. Of particular concern is the report that Bush consulted with conservative groups on the nomination.
Eric Stern, Executive Director of the National Stonewall Democrats, although quick to say that it was too early to know if Alito’s record made him a suitable nominee, said the entire process of his selection should gravely concern Americans. “This simply rewards the bad behavior of the radical right These organizations are hateful and intolerant and are being given a direct input on American policy. They’re making decisions for America that is inconsistent with the beliefs of most Americans.”
Indeed, after the Washington Post reported on Monday that the Concerned Women for America, a conservative and anti-gay organization, had said President Bush solicited their opinion on Alito’s possible nomination, the group’s Chief Counsel, Jan LaRue, confirmed in an interview that they were contacted by the administration. “We were consulted. He was at the top of our list. We’re very pleased that he was picked,” LaRue said.
Executive Director of the National Gay and Lesbian Task Force, Matt Foreman, said in a terse statement, “The country will now be put through a wrenching, divisive and damaging confirmation process. One more travesty inflicted on this nation by the president and his right wing allies.”
People for the American Way (PFAW) also came out swinging. Claiming that Alito is completely out of mainstream jurisprudence, the organization noted in a release that Alito almost always opposed any civil right cases heard before him.
“Bush completely caved to the extreme right wing. He’s supposed to be the president of all Americans, but the radical right is pulling the strings,” said Judith Schaeffer, PFAW’s legal director. She indicated PFAW would oppose Alito’s confirmation.
A similar statement was made by Joe Solmonese, Human Rights Campaign President. “President Bush chose to placate the far right instead of appealing to the fair-minded values of the American people...Alito is the far right’s choice.”
Solmonese said in a later statement that Alito’s chairmanship of a task force while a senior at Princeton in 1971 indicated the justice might be sensitive to LGBT issues. According to the Boston Globe, the task force was part of a class assignment on privacy rights, and that Alito’s group concluded sodomy should be decriminalized and job discrimination against gays and lesbians should be illegal.
Log Cabin Republicans indicated they would reserve judgement until later. Before endorsing Alito’s nomination, “Log Cabin will carefully study [his] record along with his writings and his testimony during confirmation hearings particularly as they relate to questions of basic fairness for gay and lesbian Americans,” said Log Cabin president, Patrick Guerriero, in a statement. Lambda Legal raised what they called “red flags” regarding Alito’s past rulings and how they demonstrate gay and lesbians cases might fare before him.
Jon Davidson, the group’s legal director said potential hostility to Roe v. Wade on any judge’s part should concern LGBT Americans. “Roe is the Foundation for Lawrence [the recent Supreme Court decision that invalidated the nation’s anti-gay sodomy laws]. The privacy right of what you do with your body that was the foundation of Roe is inextricably linked to Lawrence. If Roe falls, Lawrence could be in jeopardy.”
In a 1991 Pennsylvania case Alito upheld a law requiring a woman to notify her husband before she received an abortion. However, his ruling did not include any wording critical of Roe v Wade. The law was eventually overturned by the Supreme Court.
Davidson also noted that while in Reagan’s Department of Justice, Alito was responsible for co-authoring a policy that would have allowed employers to fire HIV-positive workers, even though at the time it was known the virus was not communicable through casual contact. “What we don’t know if he was just doing his job by carrying out policy or if he was coming up with these policies, or even if he has changed like the rest of country in their view of the disease,” Davidson said.
Of equal concern to Davidson was Alito’s views of the federal government’s powers to impose obligations upon the states. In a 2000 opinion, Alito ruled that the federal Family Medical Leave Act (FMLA), a law requiring time off for family and medical emergencies, could not be used to sue a state employer for damages.
“Not that gays and lesbians are covered by the FMLA, but if Congress were ever to enact any type of LGBT employment protection or domestic partner benefits, it’s not obvious if Alito would consider that something Congress is actually empowered to do.”
What also is unsure is how much opposition Alito will encounter when he begins the rounds of get-to-know-you meeting with Senators, and then progresses to Senate Judiciary Committee hearings. Already Bush has called for a confirmation vote before the New Year.
“There’s no way you can do an honest hearing by the end of December, or a fair hearing,” said Senator Patrick Leahy, a Vermont Democrat, and senior Democrat on the Senate Judiciary Committee. Even the Republican chairman of the Senate committee, Arlen Specter of Pennsylvania, said he did not think it was “realistic” to expect hearings before the end of the year given the importance of the nomination.
The pressure on the Bush administration to get the process completed is intense. Faced with the perjury indictment of Vice President’s Dick Cheney’s former Chief of Staff, what is perceived as a foundering Iraq policy, the poor response to hurricane Katrina, and the sudden crash of the Harriet Miers’s nomination under pressure from his own party, a quick vote on Alito would allow Bush to claim at least one victory at year’s end.
Also at stake is Bush’s legacy. Justice Sandra Day O’Connor has been the swing vote on dozens of cases that moved the court to a more centrist, if not liberal, slant. O’Connor was the tie-breaking vote on the Lawrence decision. An Alito court would presumably shift the balance back in the other direction.
The big question is will LGBT people get a fair shot with him on the court,” said Jon Davidson of Lambda Legal. “That’s what we’re trying to find out.”
