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Samuel Alito Supreme Court nomination

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President George W. Bush announces that Judge Samuel A. Alito, Jr. is his Supreme Court nomination during a press conference on October 31, 2005

On October 31, 2005, Samuel Anthony Alito, Jr. (born April 1, 1950) was nominated by President George W. Bush for Associate Justice of the Supreme Court of the United States to replace the retiring Sandra Day O'Connor. Alito had been a judge on the United States Court of Appeals for the Third Circuit since 1990 when he was appointed by President George H. W. Bush, until he was approved by the Senate on January 31, 2006, and sworn in to be the 110th Justice of the Supreme Court.

Further information: Samuel Alito

White House interviews

Alito was initially interviewed for the job June 24, 2001, by then-White House Counsel Alberto Gonzales. He was again interviewed May 5, 2005, by Vice President Dick Cheney, Attorney General Gonzales, White House Chief of Staff Andy Card, Karl Rove, White House Counsel Harriet Miers and the Vice President's chief of staff, I. Lewis Libby. President Bush interviewed him in person on July 14, 2005. [1]

Confirmation Hearing

On November 3, 2005, Senator Arlen Specter, chairman of the Senate Judiciary Committee outlined the prospective time line for the Alito hearing and voting, scheduling the Committee's opening statements for January 9, 2006, with the hearings expected to last five days. A committee vote was to be held on January 17, and the vote of the full Senate on the nomination was to be held January 20, which would have been nearly a month later than desired by President Bush, who had pushed for a confirmation vote to be held by Christmas.

On January 9, Judiciary Committee members presented opening statements, and questioning by members began on January 10; questioning continued until January 12, after which witness statements continued until January 13. On January 16, Senator Specter's office announced that the committee vote would take place one week later than originally planned, on January 24, with the full Senate to take up debate on the nomination the following day.

Day 2 (Jan. 10)

Committee Chairman Senator Arlen Specter (R-PA) addressed the unitary executive theory that gives the President free rein to interpret laws his way. He asked Alito about his understanding of the Truman Steel Seizure case -- Youngstown Sheet & Tube Co. v. Sawyer. Specter then asked about the (newly mentioned by Chief Justice John Roberts of the United States Supreme Court) theory of super precedent. In a humorous motion Arlen Specter said super-duper precedent as regards the Casey case.

Alito was questioned about his membership in the Concerned Alumni of Princeton, described by media reports as a racist, sexist organization that sought to restrict the admission of women and minorities to the private institution. When questioned by Senator Patrick Leahy (D-VT) about his involvement, Alito claimed to have no memory of being a member of the group. However, in his 1985 ‘Personal Qualifications Statement’ when applying to be an Assistant Attorney General, he listed his membership in CAP as a qualification. Leahy stated "I can't believe at age 35 when applying for a job" that he couldn't know. It was subsequently pointed out by several Senators that several alumni of Princeton, Senate Majority Leader Bill Frist (R-TN) and former Senator Bill Bradley (D-NJ) had publicly deplored the group's activity. Senator Orrin Hatch (R-UT) pointed out that Alito was not an officer of CAP. He also asked Alito "Are you against the admission of women or minorities?" Alito replied "Absolutely not, Senator. No".[2]

Alito did not immediately recuse himself from a case involving the low-cost mutual-fund company The Vanguard Group. Senator Hatch addressed this issue. Senator Hatch quoted the ABA Standing Committee on Federal Judiciary after investigating the Vanguard nonrecusal as saying, "Judge Alito ... is of the highest ethical standing." Alito then was allowed to explain the facts of the Vanguard case. Alito asserted that he abided by Section 455 of Title 28. Senator Edward Kennedy (D-MA) reminded Alito that he had testified that he would recuse himself during his 3rd Circuit Court confirmation. Alito said that it was a pro se case (meaning it was not argued by a lawyer). He stated that the court handles pro se cases differently from cases argued by lawyers. He said that the recusal forms are different. The Vanguard case, he said, did not come to him with "clearance sheets," just the sides briefs. "When this case came to me, I didn't focus on recusal," he said. On appeal, a recusal motion came to him and he then stated that he had "gone to the Code" and did not feel he needed to recuse. He stated that he decided to recuse himself and requested that his decision on the case be vacated. He said that his procedure for pro se cases now uses red sheets for recusals, to avoid missing them.

Seeking to allay liberals' fears of creeping federalism that could hamstring Congress as in United States v. Lopez, Senator Jeff Sessions (R-AL) asked Alito about the required interstate nexus before a federal statute can be applied. Alito explained that in his experience as United States Attorney, federal gun crime statutes can satisfy the required jurisdictional element by saying that the gun must have been transported in interstate commerce. Senator Sessions tried to do damage control over the controversial Garrett v. Alabama case that the conservative 5-4 majority used to grant more states' rights via their federalism jurisprudence holding that Congress may not grant a state citizen the right to sue his or her own state for money damages. Senator Sessions asked about Alito's views on the reading of foreign legal precedents, allowing Alito to express his support for Antonin Scalia's well-known opposition to the consideration of foreign law in crafting opinions by U.S. judges. Alito said "I don't think that foreign law is helpful in interpreting the Constitution... There are other legal issues that come up in which I think it's legitimate to look to foreign law." This is somewhat contrary to Justice Stephen Breyer's well-known exhortation to read foreign law for any help it may provide in identifying similar situations.

Senator Sessions then allowed Alito to give his opinion on the case involving the strip search of a ten-year-old girl (Doe v. Groody) that opponents have highlighted as showing Alito's extreme deference to authority (in this case the right of the police to interpret a search warrant for a suspected drug dealer's premises as authorizing them to strip-search the man's wife and daughter).

Senator Sessions also highlighted Alito's ruling in favor of abortion rights in at least one case.

Senator Lindsey Graham (R-SC) asked Alito questions about enemy combatants, and the Hamdi and Padilla cases. Seantor Graham asked whether there have ever been any cases in which a foreign non-citizen soldier/fighter brought suit in a U.S. court. Alito was asked whether any enemy prisoner of war ever brought a federal habeas corpus case. There were two cases, the Six Saboteurs, in re Quirin where even U.S. citizens are not entitled to federal courts but allowed only military tribunals. Then the second case involving six Germans caught assisting Japanese Eisentrager who were sent to Germany; they brought an unsuccessful habeas corpus case. They were held "not [in] U.S. territory". Graham said, "We don't let people trying to kill us sue us." Alito said that "[he] wouldn't put it" so strongly. Alito said that we also need to take note of Ex Parte Milligan from the Civil War. Senator Graham disagreed. Alito agreed with Senator Graham that the military has expertise on who is and who is not a prisoner of war. However, the treatment of detainees, according to Graham, is a different matter. Senator Graham asked whether Alito is proud of the fact the the USA is a signatory to the Geneva Convention. Senator Graham asked whether if someone were caught whether here or abroad a la Hamdan the Geneva Convention would give the prisoner a private right of action. Senator Graham pointed out that where he differed from some others is on the question of torture. Graham asked whether any President can disregard the federal statute against torture -- making it a crime -- even in war. Alito said "the President is not above the law."

On the question of what a Strict constructionist is, Alito again agreed with Senator Graham, stating it was a judge who did not make it up. Senator Graham asked whether a President who interprets the Congressional authorization for the Use of Force as giving him the right to wire-tap without getting a FISA warrant is ... Sentor Graham said that his point a la Justice Jackson (in the Youngstown Sheet & Tube v. Sawyer case) was not aimed at Alito but "at the audience". Senator Graham is worried about the "chilling effect" of a President who goes too far, leaving Congress gun-shy about granting the executive branch the "Use of Force" (i.e. declining to pass a War Resolution). Graham hinted at the 60-vote requirement for breaking a so-called filibuster (actually invoking cloture)... super-duper precedent. Alito did not take the bait over whether any statute or rule could be made to overrule the simple majority that the Constitution requires for confirming a Supreme Court Justice.

Senator Charles Schumer (D-NY) asked Alito whether statements in his 1985 ‘Personal Qualifications Statement’ when applying to be an Assistant Attorney General under Pres. Ronald Reagan still represent his views at the time and also whether they represent his views today. Alito gave an evasive answer about stare decisis. Senator Schumer responded, stating that Alito had stated forthrightly that "the Constitution does not protect a right to an abortion". Senator Schumer said that "it's important that you (Alito) give an answer." Alito replied that if a case involving abortion rights came up, he would use a judicial process. Senator Schumer rejoined ... "I'm not asking about a process;.... Do you still believe it?" Senator Schumer remarked "I'm not asking you about case law". Senator Schumer then asked whether the "Constitution protects the right of free speech" whereupon Alito agreed. Senator Schumer then compared that question with the question of whether the Constitution protects the right to an abortion. Senator Schumer then made an elliptical comment about hypothetical in-laws. Senator Schumer said that he didn't expect Alito to answer the abortion question. Senator Schumer mentioned the National League of Cities v. Usery and how it was overruled by Garcia v. San Antonio Metropolitan Transit Authority and how Lawrence v. Texas overruled Bowers v. Hardwick and Brown v. Board of Education overruled Plessy v. Ferguson. So Alito agreed that stare decisis is not inviolate. Senator Schumer made allusions to Justice Clarence Thomas's views on stare decisis, which he claimed included a call for Buckley v. Valeo, Calder v. Bull and a long string of cases establishing Supreme Court precedent to be overturned.

Senator John Cornyn (R-TX) characterized Senator Schumer's questioning as of the "When did you stop beating your wife?" style and remarked that if Senator Schumer can mention in-laws, he can mention a wife. Senator Cornyn said that the word "abortion" is not in the Constitution; Alito said, "The word that appears in the Constitution is liberty." He further claimed that "There is no express reference to privacy in the Constitution. But it is protected by the Fourth Amendment and in certain circumstances by the First Amendment and in certain circumstances by the Fifth and the 14th Amendments."

Day 3 (Jan. 11)

Senator Richard Durbin (D-IL) pressed Alito to either agree or disagree with a statement by Chief Justice John Roberts that the 1973 Roe v. Wade decision was "settled law." Alito would not agree, stating that it was a matter that could come before the court, and that "it is an issue that is involved in litigation now at all levels." He did say, "When a decision is challenged and reaffirmed, it increases its value. The more times it happens, the more respect it has." Senator Durbin suggested there seemed to be inconsistency between Alito's unequivocal support for the unspecified right to desegregated schools in Brown v. Board of Education from the equal protection clause and his refusal to do the same for the Griswold case from the liberty clause. Durbin also questioned Alito further regarding his membership in Concerned Alumni for Princeton, and Alito again denied remembering any details about his membership in the organization.

Senator Sam Brownback (R-KS) countered with a recommendation from a former law clerk who was a member of the ACLU. On checks and balances Brownback then asked Alito about the power of Congress to limit the federal courts jurisdiction in the Exceptions Clause as in Ex Parte McCardle.

Senator Herb Kohl (D-WI) cited a Washington Post analysis of 221 cases where there was a 2-1 judicial split in decisions on Civil Rights cases, which found that Alito sided against 3 out of every 4 plaintiffs who claimed discrimination, a much higher rate than that of similar judges. Alito said that the sample was skewed because most of the cases were from District Court where the plaintiff lost.

Judiciary Committee Chairman Senator Arlen Specter (R-PA) and Senator Edward Kennedy (D-MA) had a heated exchange after Senator Kennedy called for the committee to subpoena records of the Concerned Alumni of Princeton (a controversial group of which Alito was a member). There was some argument between the two Senators over the fact that Senator Kennedy had previously made this request to Senator Specter via mail. This issue was later resolved during a recess when Senator Specter was reminded that he had dismissed it as "unmeritorious." William A. Rusher, one of CAP's founders and former publisher of National Review, released the CAP records later this day.

Senator Patrick Leahy (D-VT) told Alito that he was "concerned that you may be retreating from part of your record." Senator Leahy continued, "A number of us have been troubled by what we see as inconsistencies in some of the answers."

Senator Mike DeWine (R-OH) then mentioned his concern on the Americans with Disabilities Act that the Olmstedt? case in 1999, where the Supreme Court held that the state must offer disabled people access to all public facilities and programs. Senator DeWine asked Alito if he would reconsider his decision in the earlier Helen L case in the motion for rehearing.

Senator DeWine asked about antitrust where many hospitals buy using GPOs (group purchasing organizations) to get discounts. This results in smaller companies having a hard time getting into the business. He asked about the famous bundling case 3M v. LePage case in which Alito dissented (the majority found against 3M). Senator DeWine then asked the great question of Constitutional Law, the fact that many clauses are written in the general terms of Unlawful Search and Seizure, Cruel and Unusual... how would he as a Justice know whether he was following the Constitution or whether he was making policy. Alito mentioned stare decisis and used the Terry stop search and administrative search and the border search as examples of how to follow what was done before.

Senator DeWine then went on to a First Amendment question. He mentioned the fact pattern of the Gilleo case where homeowners were restricted on the size and type of lawn signs that they could display. He asked Alito what factors he would use to decide how to restrict speech in the public square. Alito said that the Forum Doctrine has been developed to address speech in public. But would Alito reverse Greer v. Spock or Adderly v. Florida. Senator DeWine asked about Commercial Speech in Pitt News where Alito struck down a local speech restricting rule. Alito said that sufficient tailoring was used as the standard for invalidating the ordinance that applied only to the Pitt News and not to other papers.

Day 4 (Jan. 12)

This scheduled final day of committee questioning began at 9:30 AM EST.

Senator Arlen Specter (R- PA) began by recounting the review of records relating to CAP by committee staff along with staff members of Sen. Kennedy. He noted that no mention of Judge Alito was found in any of the documents. The documents included contributor lists and subscriber lists for the organization's magazine, Prospect. The Senator also noted that the organization's founder stated, "I have no recollection of Samuel Alito at all. He certainly was not very heavily involved in CAP, if at all." He then yielded to Sen. Leahy for an opening statement before starting Senator Leahy's allotted time.

Senator Patrick Leahy (D-VT) questioned Alito on subjects ranging from the death penalty to the right to die, later telling reporters "I continue to be worried -- and I pressed the questions again today, as I have all week long,...He is not clear that he would serve to protect America's fundamental rights."

Senator Edward Kennedy (D-MA) began his questioning of Alito asking him about his comment that "The concept of a unitary executive does not have to do with the scope of executive power," asserting that this comment was contradictory to others made by Alito. Senator Kennedy again questioned Alito on his recusal list as a member of the Third Circuit Court of Appeals with regard to the Vanguard case. There is some dispute as to when the Vanguard companies were added to Alito's recusal list. Senator Kennedy went on to say "[Alito] has failed to give us any plausible explanation."

Senator Joe Biden (D-DE) initiated his alotted twenty mintues of questioning by asking Alito if the President has the authority to "invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there's an immediate threat to our national security?" Alito responded to Senator Biden's questioning with "... what I can tell you is that I have not studied these authorities and it is not my practice to just express an opinion on a constitutional question including particularly one that is as momentous as this."

Senator Herb Kohl (D-WI) asked Alito "do you think that the courts need to consider public opinion when deciding cases?" -- to which he responded "I think that the courts were structured the way they are so that they would not decide their cases based on public opinion." Senator Kohl went on to ask "Should judges be term-limited? Should judges, at least, be age-limited?" Alito responded "I didn't think we should look to foreign law in interpreting our Constitution, [but] I don't see a problem in looking to the practices of foreign countries in the way they organize their constitutional courts." When asked how he differs from Justice O'Connor Alito said "I would try to emulate her dedication and her integrity and her dedication to the case-by-case process of adjudication, which is what I think the Supreme Court and the other federal courts should carry out. I think that is a central feature of best traditions of our judicial system."

Senator Dianne Feinstein (D-CA) questioned Alito on the separation of powers and the Constitutional limits on executive authority. The questioning of Alito continued with Senator Chuck Grassley (R-IA), Senator Russ Feingold (D-WI), and Senator Charles Schumer (D-NY). After a brief recess, questioning continued with Senator Jeff Sessions (R-AL), Senator Richard Durbin (D-IL), Senator Lindsey Graham (R-SC), and Senator John Cornyn (R-TX) yielding their time before going into closed executive session.

Witness Testimony

Witness testimony began with the ABA Standing Committee on Federal Judiciary after the scheduled lunch recess at 2:30 PM EST.

The Official Witness List is available.

Day 5 (Jan. 13)

Witness testimony continued.

Senate Debate

On January 24th, 2006, the Judiciary Committee voted on a straight partisan line, 10-8, to send Alito's nomination to the full Senate.

The Democratic Senators from Massachussetts, John Kerry and Ted Kennedy, attempted to gain support for a filibuster of the nominee, however they gained little support even within their own party. The Senate voted for cloture on the nomination 72-25.

The Senate voted 58-42 on Tuesday, January 31, to confirm Alito as the 110th Justice of the Supreme Court. All but one of the 55 Senate Republicans voted to confirm Alito, as well as four Democrats: Senator Ben Nelson (D-NE), Senator Robert Byrd (D-WV), Senator Tim Johnson (D-SD), and Senator Kent Conrad (D-ND). Forty-two Senators voted against Alito's confirmation (40 Democrats, Lincoln Chafee (R-RI), and Jim Jeffords (I-VT)).

Nomination issues

Conflict of interest question

On a questionnaire for the Senate Judiciary Committee in his third circuit court-of-appeals confirmation process in 1990, Alito said he would avoid a conflict of interest by not voting on cases involving First Federal Savings & Loan of Rochester, NY, and two investment firms, Smith Barney and Vanguard Group, because he held accounts with them. However, in 2002, Alito upheld a lower court's dismissal of a lawsuit filed against multiple investment company defendants, including Vanguard Group. When notified of the situation, Alito denied doing anything improper but recused himself from further involvement in the case. The case was reheard with the new panel coming to the same conclusion.

On November 10, Judge Alito wrote to Senator Specter, the chairman of the Senate Judiciary Committee, explaining his participation in the case [3]. He said that when he had originally listed Vanguard and Smith Barney in 1990, "my intention was to state that I would never knowingly hear a case where a conflict of interest existed. [...] As my service continued, I realized that I had been unduly restrictive."

During witness testimony of Alito's confirmation hearings witness John Payton (member of the American Bar Association's Standing Committee on Federal Judiciary) testified "In the end, he did acknowledge that it was his responsibility that a mistake and error had been made. Those cases should have been caught and he should have not heard those cases."

Filibuster

Some Democrat Senators who oppose the Alito nomination considered using a filibuster option in the attempt to block the nomination. Senator Barbara Boxer (D-CA) said "The filibuster's on the table." While other Senators warned not to rush to a decision, Dick Durbin (D-IL) said "I don't think we should assume that's going to happen at all." He added, "Ordinarily it takes six to eight weeks to evaluate a Supreme Court nominee. We shouldn't rush to judgment."

At the conclusion of the confirmation hearings, January 12, the threat of a filibuster appeared to grow more remote as Durbin called a filibuster attempt "unlikely". Judiciary Committee member Dianne Feinstein (D-CA) said, "I do not see a likelihood of a filibuster...This might be a man I disagree with, but it doesn't mean he shouldn't be on the court."[4] She changed her position on January 27th, saying that she would vote no for cloture. [5] Fellow Judiciary Committee member Joe Biden (D-DE) admitted, "I think he is going to be confirmed." Other Democrats such as Mary Landrieu (D-LA), Ken Salazar (D-CO), Daniel Akaka (D-HI), and Byron Dorgan (D-ND), however, said they would not support a filibuster, though they all voted against confirmation.[6][7] In addition, Senators Mark Pryor (D-AR), Kent Conrad (D-ND), and Joe Biden (D-DE) indicated that they did not support a filibuster. [8] [9] Later, however, Joe Biden announced on the 29th that he would vote no for cloture.

Senator John Kerry (D-MA) called for a filibuster to block Alito's nomination on Thursday, January 26. Despite the support of his fellow Massachusetts Senator, Ted Kennedy (D-MA), Senator Hillary Clinton (D-NY).[10][11][12] and Harry Reid (D-NV), the top Democrat in the Senate, other Democrats were afraid the measure would backfire and were cautious to support it. Just one day after Senator Kerry's call for a filibuster, Senator Reid further stated that the Democrats did not have the votes needed to sustain a filibuster to block the confirmation of Samuel Alito. "We're going to have a vote Tuesday morning," Reid said. "Everyone knows there are not enough votes to support a filibuster."[13][14]

A motion to invoke cloture and end debate was made on Friday, January 27, and passed on Monday, January 30 by a vote of 72-24 with four senators not voting (including Republican John Ensign, who had been injured in a car accident earlier that day). All of the members of the Gang of Fourteen voted for cloture with the majority. The final confirmation vote occurred on Tuesday, January 31st, with the nomination approved by a vote of 58 to 42.

American Bar Association Rating

Alito was rated by the American Bar Association as “Well Qualified”, which is the ABA's highest recommendation. In a letter to the Judiciary Committee, Chair of the ABA Standing Committee on Federal Judiciary, Stephen Tober reviewed Alito's failure to recuse himself in Vanguard and Smith Barney matters, and a third case where a conflict was alleged. Tober concluded:

We accept [Alito's] explanation and do not believe these matters reflect adversely on him... On the basis of our interviews with Judge Alito and with well over 300 judges, lawyers, and members of the legal community nationwide, all of whom know Judge Alito professionally, the Standing Committee concluded that Judge Alito is an individual of excellent integrity.

Stances on controversial issues

Abortion

  • A dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), arguing that a Pennsylvania law that required women seeking abortions to inform their husbands should have been upheld. As Judge Alito reasoned:
[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems — such as economic constraints, future plans, or the husbands' previously expressed opposition — that may be obviated by discussion prior to the abortion." He added some exceptions: "These exceptions apply if a woman certifies that she has not notified her husband because she believes [FN4] that (1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her."
Rehnquist's dissent [15] from the Supreme Court's plurality decision striking down the spousal notification provision of the law quoted Judge Alito's dissent and expressed support for his reasoning.
  • A concurring opinion in Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127 (3rd Cir. 2000), [16] in which Judge Alito recognized that a New Jersey law banning intact dilation and extraction (commonly called "partial-birth abortion") was unconstititional in light of the then recent Supreme Court case of Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), which struck down a nearly identical law in Nebraska.
  • In 1995, voted to strike down an abortion restriction in a Pennsylvania law that required women seeking to use Medicaid funds to abort a pregnancy resulting from rape or incest to report the incident to law enforcement officials and identify the offender.
  • Ruled the Constitution does not afford protection to the unborn in a 1997 challenge to a New Jersey law that prevents parents from suing for damages on behalf of the wrongful death of a fetus.
  • Stated that "the Constitution does not protect a right to an abortion" in a 1985 document obtained by The Washington Times.

Separation of Church and State

Main article: ACLU v. Schundler

In ACLU-NJ v. Township of Wall (2001), [17] Alito dismissed for lack of standing an appeal of a lower court ruling that Wall, New Jersey's 1999 holiday display, which included a nativity scene, a donated menorah, a large evergreen tree and candy cane banners, did not violate the Establishment Clause of the First Amendment. Alito ruled that the plaintiffs had not offered evidence they "suffered the type of injury that would confer standing." The ruling does not "prevent plaintiffs from attempting to challenge any future display that plaintiffs believe violates constitutional principles."

Discrimination

Race-based

  • A majority opinion in Williams v. Price, 343 F.3d 223 (3d Cir. 2003), [25] granting a writ of habeas corpus to a black state prisoner after state courts had refused to consider the testimony of a witness who stated that a juror had uttered derogatory remarks about blacks during an encounter in the courthouse after the conclusion of the trial.
  • 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 opinion warned that the "... statute must not be applied in a manner that ignores the sad reality that racial animus can all too easily warp an individual's perspective to the point that he or she never considers the member of a protected class the "best" candidate regardless of that person's credentials", and that Alito's dissenting opinion "would immunize 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.” Alito, on the other hand, argued that the majority was too liberal in decreasing the burden required of the plaintiff to obtain a summary judgment. He added that "we are allowing disgruntled employees to impose the costs of trial on employers". Bray v. Marriott Hotels, 1997.

Disability-based

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.

Sexual Orientation-based

A majority opinion in Saxe v. State, 240 F.3d 200 (3d. Cir. 2001), that declared unconstitutional a public school district policy that prohibited harassment against students because of their sexual orientation or other characteristics. Alito reasoned that the policy was unconstitutional because it could cover what he called "simple acts of teasing and name-calling."

At Princeton, Alito led a student conference which, among other things, supported curbs on domestic intelligence gathering and called for the legalization of sodomy. He stated that "no private sexual act between consenting adults should be forbidden," and urged for an end to discrimination against homosexuals in hiring by employers. [18]

Family and Medical Leave Act

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.

Searches

In Doe v. Groody (3d Cir. 2004), Alito's controversially dissented that police officers should have qualified immunity against a "1983 lawsuit" for a strip-searching a mother and her ten-year-old daughter while conducting a search with a warrant because the females were indirectly mentioned on the affidavit supporting the warrant. Doe v. Groody, 2004.

Immigration

In two cases involving the deportation of immigrants, the majority twice alleged that Alito had disregarded 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 (PDF), 2004.

First Amendment

  • A majority opinion in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) [19], holding that the public school district's anti-harassment policy, which prohibited harassment based on sexual orientation among other criteria, was unconstitutionally overbroad and therefore violated First Amendment guarantees of free speech. Alito wrote: No court or legislature has ever suggested that unwelcome speech directed at another's 'values' may be prohibited under the rubric of anti-discrimination.
  • A dissenting opinion in Banks v. Beard, 399 F.3d 134 (3d Cir. 2005), arguing that the prison policy prohibiting inmates of a segregated unit from accessing news media or family photographs was not a violation of the First Amendment. Alito reasoned:[20]
[T]here is a "rational" relationship between that restriction and the legitimate penological objective of deterring misconduct. It is "rational" for corrections officials to think that inmates who are not in Level 2 will be deterred from engaging in serious misconduct because they do not want to be transferred to that unit and thus to be subjected to the restrictions that accompany that assignment. It is also "rational" for corrections officials to think that inmates who are in Level 2 will be deterred from engaging in serious misconduct while in that unit because they wish to be transferred out and thus to escape such restrictions.
  • A majority opinion in Child Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004) involving the Establishment Clause. The court found that a school district could not preclude an evangelical group from distributing its newsletters where the school district permitted other private groups to do the same.
  • A majority opinion in Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004), involving the Free Exercise Clause. The case involved a Native American's ritual that used black bears. The state denied the plaintiff an exemption to a $200/year exotic wildlife dealer permit to keep the bears under the state's Game and Wildlife Code. The court found that the code invoked strict scrutiny. The majority found the code was "substantially" under-inclusive and did not meet strict scrutiny.
  • A majority opinion [21] in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999), holding that a holiday display on city property did not violate the Establishment Clause because it included secular symbols, such as a large plastic Santa Claus, in addition to religious symbols. The U.S. Supreme Court had previously held such mixed displays constitutional. The ACLU argued that a previous city display that was ruled unconstitutional because it lacked secular symbols colored the purpose of the new display. Alito wrote:
As our prior discussion of Lynch and Allegheny County illustrates, the Supreme Court's decisions regarding holiday displays have been marked by fine line-drawing, and therefore it is not easy to determine whether particular displays satisfy the Court's standards. Under these circumstances, the mere fact that city officials miscalculate and approve a display that is found by the federal courts to cross over the line is hardly proof of the officials' bad faith.
  • A dissenting opinion in C.H. v. Olivia et al. (3rd Cir., 2000)[22] arguing that the removal and subsequent replacement in "a less conspicuous spot" of a kindergartener's religious themed poster was, at least potentially, a violation of his right to Free Expression
  • In Police v City of Newark, 1999; the opinion he drafted ruled that Muslim police officers in Newark could keep their beards for religious reasons.
  • In The Pitt News v Pappert, 2004; he backed the right of student newspapers to carry alcohol advertisements as a matter of free speech.

Federalism

Executive branch

Main article: Unitary Executive theory

Several of Alito's writings argued for a powerful executive branch. According to People for the American Way, "Alito has shown a strong predilection to concentrate power in the executive branch" [23]. An example of this is the so-called "signing statement," a concept advocated by Alito to increase Presidential power and used by President Bush recently to reserve the right to waive the ban on torture.[24]

The Unitary Executive concept is considered critical in this debate. "We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president," Alito said, referring to his days in the Reagan administration. "And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure." [25]

"In an era when the White House is abusing power, is excusing and authorizing torture, and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling," Sen. Edward Kennedy (D-MA) said in his opening statement. [26]

In his confirmation hearings in January 2006, he was repeatedly asked about his views on the Unitary Executive theory. He said:

"As I understand the concept, it is the concept that the president is the head of the executive branch. The Constitution says that the president is given the executive power.
And the idea of the unitary executive is that the president should be able to control the executive branch, however big it is or however small it is, whether it's as small as it was when George Washington was president or whether it's big as it is today or even bigger.
It has to do with control of whatever the executive is doing. It doesn't have to do with the scope of executive power. It does not have to do with whether the executive power that the president is given includes a lot of unnamed powers or what's often called inherent powers.
So it's the difference between scope and control. And as I understand the idea of the unitary executive, it goes just to the question of control; it doesn't go to the question of scope." (Transcript of hearing Tuesday, January 10, 2006)

Nevertheless, based upon Alito's previous statements, opponents[27] have expressed their fear he will not uphold the separation of powers as intended by the Constitution.[28] They believe he will support the Bush administration in its interpretation of the Unitary Executive, which they suggest is that as Commander-in-Chief the President can not be restrained by law, national or international.[29]

Use of international law

In response to a question from Senator Kyl (R - Arizona) concerning use of international law in supreme court decisions, Judge Alito stated:

"I don't think that foreign law is helpful in interpreting the Constitution. Our Constitution does two basic things. It sets out the structure of our government and it protects fundamental rights. The structure of our government is unique to our country, and so I don't think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government. As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents. Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human -- in fact, I don't think there were any that protected human rights the way our Bill of Rights did." (Transcript of hearing Tuesday, January 10, 2006)

Reaction to the nomination

Support

Gary Bauer, president of the conservative American Values Coalition, has said "Any Republican senator who abandons this conservative nominee should be considered disqualified as a future presidential or vice presidential candidate." "The nomination of Harriet Miers has split conservatives unlike anything I can remember. The debate will not end, in fact it will become more intense."

"Harriet Miers was a feminist who had no judicial experience and her strongest qualification was that she's a friend of the president's. Alito has a terribly impressive record as a judge and as a prosecutor," said Phyllis Schlafly, Eagle Forum president.

Senate Majority Leader Bill Frist (R-TN), when asked about a possible filibuster by Senate Democrats, said, "If the Democrats are looking for a fight, we'll be up for the fight. We won't back down. ... We're gonna get an up or down vote on the Senate floor and if the Democrats want a fight, they'll get one." Frist also said, "Judge Alito is unquestionably qualified to serve on our nation's highest court. And on the bench, he has displayed a judicial philosophy marked by judicial restraint and respect for the limited role of the judiciary to interpret the law and not legislate from the bench."

Senator Lindsey Graham (R-SC) affirmed that if the Democrats attempt to block the confirmation of Judge Alito, "the filibuster will not stand."

Senator Orrin Hatch (R-UT): "President Bush has hit a home run by selecting Sam Alito. Anyone would be hard-pressed to name another nominee with such a sterling and distinguished record. Judge Alito believes the law — not the judge — should determine the results in a case. Judges are not politicians, and my Senate colleagues would do well to remember this standard as they consider this outstanding pick."

Senator Sam Brownback, (R-KS): "I commend the president and congratulate Judge Alito on this nomination, and I look forward to the upcoming confirmation hearing, during which members of the Judiciary Committee will have a robust and, I hope, civil dialogue with the nominee about the meaning of the Constitution and the role of the courts in American life."

Secretary of Homeland Security Michael Chertoff: "He's a believer in the fact that a judge has a limited role to play and has a responsibility to play the role in an honest fashion — that you're not supposed to substitute your personal judgments for what the law is."

Senator John Cornyn, (R-TX): "Since Justice O'Connor announced her resignation, the president has engaged in unprecedented consultation with the United States Senate. It is now the responsibility of the Senate to consider this nomination in a thorough and timely fashion."

Senator David Vitter, (R-LA): "He has impeccable legal credentials and a well-grounded conservative judicial philosophy - just what so many, including me, consider most important."

James Dobson, leader of the conservative religious organization Focus on the Family, said he was "extremely pleased," and the anti-abortion group Operation Rescue declared that the country was on "the fast-track to derailing Roe v. Wade as the law of the land."

Pat Robertson, a conservative Southern Baptist televangelist, called the nomination a "grand-slam home run."

Senator Ben Nelson (D-NE) has said he was impressed by what he heard from Alito during his introductory visit. "He assured me that he wants to go to the bench without a political agenda."

Senator Tim Johnson (D-SD) has said that he will vote to confirm Alito. Johnson is the second Democrat to publicly state that he will vote in favor of confirmation.[30]

Senator Robert Byrd (D-WV) has said that he will vote to confirm Alito. Byrd is the third Democrat to publicly state that he will vote in favor of confirmation.

Senator Kent Conrad (D-ND) has announced that he is "leaning in favor of voting for" the conservative judge. "It is clear to me that a majority of the American people and the people I represent support his confirmation," he said after meeting with Alito in his office.[31]

Opposition

Sen. Patrick Leahy (D-VT) claims Bush "has chosen to reward one faction of his party, at the risk of dividing the country." He further says the Miers nomination exposed a "right-wing litmus test" for Supreme Court nominees.

Senate Minority Leader Harry Reid (D-NV) has said "This appointment ignores the value of diverse backgrounds and perspectives on the Supreme Court. The president has chosen a man to replace Sandra Day O'Connor, one of only two women on the court. For the third time, he has declined to make history by nominating the first Hispanic to the court." Reid also said the Senate would give Alito "an especially long hard look by the Senate because of what happened last week to Harriet Miers." He went on to say "Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people." He went on to say "President Bush would leave the Supreme Court looking less like America and more like an old boys' club."

Sen. Dianne Feinstein (D-CA) has said that she would vote against the nomination fearing that "he [Alito] would be more conservative" than Chief Justice Roberts. On CBS' Face the Nation, Feinstein said that it would be unlikely for a filibuster of his nomination.

Sen. Charles Schumer (D-NY) has said "It is sad that the president felt he had to pick a nominee likely to divide America instead of choosing a nominee in the mold of Sandra Day O'Connor, who would unify us."

Sen. Barack Obama (D-IL) has said "Though I will reserve judgment on how I will vote on Judge Alito's nomination until after the hearings, I am concerned that President Bush has wasted an opportunity to appoint a consensus nominee in the mold of Sandra Day O'Connor and has instead made a selection to appease the far right-wing of the Republican Party." [32]

Sen. Barbara Boxer (D-CA) stated: "I believe this nomination is aimed at appeasing the most right-wing elements of the president's political base."

Sen. Debbie Stabenow (D-MI) in a meeting surrounded by Democratic Senate Judiciary Members, she attacked Alito's stance on many controversial rulings, including the strip search of a 10 year old girl, seizing a dairy farmer's land with force, and the shooting of a 7 year old boy.

Sen. Ted Kennedy (D-MA) stated: "Rather than selecting a nominee for the good of the nation and the court, President Bush has picked a nominee who he hopes will stop the massive hemorrhaging of support on his right wing. This is a nomination based on weakness, not strength."

Sen. John Kerry (D-MA) stated: “Every American should be deeply concerned that the far right wing which prevented Harriet Miers from even receiving a Senate hearing is celebrating Judge Alito’s nomination and urging the Senate to rubber-stamp the swing vote on our rights and liberties. Has the right wing now forced a weakened President to nominate a divisive justice in the mold of Antonin Scalia?"[33]

House Minority Leader Rep. Nancy Pelosi (D-CA) stated:"Last week after Harriet Miers withdrew her nomination, I asked the President: Who was in charge? Today, the President answered: the radical conservative right is in charge of this Administration."

"Judge Alito is exactly the far-right nominee that the Republican Party's reactionary wing demanded after it 'Borked' Harriet Miers. Judge Alito is to the right of the existing Supreme Court on abortion, and he's to the right of all nine justices, even Scalia and Thomas, in advocating an extremely high burden of proof for employment discrimination cases," said Scott Moss, Marquette University Law School professor.

"Judge Alito would undermine basic reproductive rights, and Planned Parenthood will oppose his confirmation," said Karen Pearl, interim president. "It is outrageous that President Bush would replace a moderate conservative like Justice O'Connor with a conservative hardliner."

Kate Michelman, former president of NARAL Pro-Choice America, remarked that "the gauntlet has been, I think, thrown down."

"NARAL Pro-Choice America announced its opposition to President Bush’s nomination of Samuel Alito, Jr. to replace retiring Justice Sandra Day O’Connor. In choosing Alito, President Bush gave in to the demands of his far-right base and is attempting to replace the moderate O’Connor with someone who would move the court in a direction that threatens fundamental freedoms, including a woman’s right to choose as guaranteed by Roe v. Wade." NARAL Press Release

The National Association of Women Lawyers "determined that Judge Alito is not qualified to serve on the Court from the perspective of laws and decisions regarding women's rights or that have a special impact on women."[34]

"By nominating someone who regularly sides with big corporations against the rights of ordinary Americans, the President chose a man who passes all of the right-wing litmus tests," said Ben Brandzel, Advocacy Director of MoveOn.org Political Action Committee. "Many of Alito's opinions as an Appellate Judge were so extreme that he was reversed and rebuked by his colleagues. But on the Supreme Court, joining with fellow extreme right-wingers, Scalia and Thomas, he could do real damage," Brandzel added.

"Justice O'Connor has provided more than a swing vote," said Steven R. Shapiro, the ACLU's National Legal Director. "She has been a moderating voice on critical civil liberties issues ranging from race to religion to reproductive freedom. Judge Alito’s position on each of these issues has been more hostile to civil liberties than positions taken by Justice O'Connor. His nomination therefore calls into question the court’s delicate balance that Justice O'Connor has helped to shape and preserve."[35]

Senator Lincoln Chafee (R-RI) stated on January 30, 2006, "I am a pro-choice, pro-environment, pro-Bill of Rights Republican, and I will be voting against this nomination."[36]

Neutral

  • Response to a Senate Judiciary Committee questionnaire [37](Nov. 30 2005) (PDF), (Appendix1 Appendix2 Appendix3 Appendix4)
  • ‘Personal Qualifications Statement’ when applying to be an Assistant Attorney General under Pres. Ronald Reagan. [38] (Nov. 15, 1985)
  • Legal Memo written as Deputy Asst. Attorney General to the OMB’s General Counsel regarding OMB authority of FDIC funds. [39] (1986) (PDF)
  • House Committee on the Judiciary testimony regarding unpublished court opinions. [40](1990) (PDF)
  • 2004 Financial Disclosure [41]
  • 2003 Financial Disclosure [42]

Additional information

Some who claim he is ideologically similar to United States Supreme Court Associate Justice Antonin Scalia have nicknamed him "Scalito," (a portmanteau of "Scalia" and "Alito" that appears to have originated in a 1992 National Law Journal article). The National Italian American Foundation (a group that has supported the House Minority Leader Rep. Nancy Pelosi (D-CA) Nancy Pelosi, an Italian-American) has claimed the use of the "Scalito" nickname "marginalizes [Alito's] outstanding record." [43]

While there is no religious test to be a Supreme Court justice in the United States, the religion of a nominee can be significant to their supporters and opponents. Alito is the fifth Roman Catholic to serve on the current Supreme Court, joining two Jews and two Protestants, thus creating the first Court where the majority of justices are Catholic. Together, Catholics (24% of the U.S. population) and Jews (2% of the population) would constitute 77% of the Supreme Court membership. Protestants, on the other hand, (whose denominations constitute a majority of the American population) continue to make up only a minority of the justices on the court. See also: demographics of the Supreme Court of the United States.

Alito was put on the 3rd Circuit Court of Appeals, in Philadelphia, by Bush's father.(Time Magazine)

He is a member of the Federalist Society, an umbrella group of conservative and libertarian lawyers and legal scholars.MSNBC

Alito has argued before the Supreme Court 12 times.

Notes

  1. ^ Alito's statements
  2. ^ Trias Politica
  3. ^ Possible view Bush administration

References

Transcripts & Video

Profiles

Analysis

Research

Partisan

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