Update on Judge Alito

Confirmation hearings began on January 9th to place Judge Samuel Alito as the nation’s 110th Supreme Court Justice. If he is confirmed this will be one of the most consequential confirmations in history, as he will significantly redirect the ideology of the Court to the right. The hearings began with a short opening statement by the nominee, and continued with questions from each member of Congress before a final decision is reached. The hearing is expected to last for several days, as they will be discussing the 15 years of judicial decisions he has made in detail. Senator Charles Schumer (D-NY) anticipates extensive questions from the members and is insisting that Judge Alito answer them fully. The Senator feels that Alito’s explicitly conservative views, evident from years of writing decisions, make this necessary to clarify his previous positions. However, supporters of Judge Alito argue that he is no more obligated to answer questions than previous nominees.

Originally, Senate Republicans were hoping for the full Senate to vote occur on January 20th, but it now appears that it will be delayed, as it becomes clear that the Democrats will invoke their right to delay the committee vote. This will prolong the process and give Democrats and Republicans alike more time to make their cases for the final Senate vote. However, this will not affect the Supreme Court itself, as Justice O’Connor is still sitting in on arguments, and the court is in recess until February 21st.

The hearings will serve as an opportunity for Democrats to ascertain whether Judge Alito’s views have become more mainstream after his recently released documents have portrayed him as an extremely conservative justice. This process will differ greatly from that of Chief Justice Roberts’, as seven federal judges, former colleagues of Judge Alito on the United States Court of Appeals Third Circuit, will be testifying as character witnesses. While rare, this is not unheard of, and has occurred during other hearings, such as that of Warren E. Burger, who went on to be the Chief Justice of the court from 1969 to 1986. Judge Alito has been presented by Republicans as a well-qualified nominee and received the highest rating possible from the American Bar Association - a measure commonly used to indicate the integrity and competence of a judge - but he still has many obstacles ahead of him. He echoes views far outside the mainstream on privacy, civil rights, control of corporations, abortion, school prayer, and immigration.

Warrantless Wiretaps

Since I last wrote about the pending confirmation hearings, new documents have been released by the National Archives that have opened a new window into the views of the Supreme Court nominee. The most recent of which reveals Judge Alito’s view, while working in the Justice Department under Reagan, that government officials should have the right to order warrantless domestic wiretaps. The memo in question dealt with whether government officials should have blanket protection from lawsuits authorizing wiretaps, and was originally written to help the solicitor general argue that John Mitchell, Nixon’s Attorney General, could not be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot. It was his view that, when called upon to take action to protect the security of the nation, the attorney general should not be forced to worry about his pocketbook first. The court, when the brief was written, disagreed with the administrations argument, although they gave Mitchell immunity because he was unaware his actions were unconstitutional. The court felt that the attorney general and other high level officials could be sued for violating people’s rights and the 4th amendment in the name of national security. In light of this memo and the President’s recent attempts to overextend the authority granted him by the Constitution, the members of the Senate Judiciary Committee have promised to question Alito on his views of these actions taken by the president to see how he may rule in such a situation.

In the light of these recent revelations I am deeply concerned about the future of an American’s Right to Privacy, as well as the future powers the President may claim. If confirmed, the balance of the court will swing toward the interests of the Conservatives, meaning that if the current issue of the President authorizing warrantless wiretaps reaches the Supreme Court (which it probably will) the members of the court could add even more authority to what already has been called the “Imperial Presidency.” Such a decision will allow the government to peek not only into our Library records, but into our daily conversations and other private transactions, whether on the phone or online. This is a deeply disturbing change in the court’s makeup - to be moving from an independent, middle-of-the-road Justice who ruled on either side of the aisle, to a strict constructionist with little independence from the current Administration who would interpret the Constitution word for word, not based on the current world in which the document exists, as the Framers intended.

Judge Alito believes that the Framers wanted executive power to be held by the President alone, and not by administrative agencies or Congress, so that the huge power of the legislature and the factions that may gain control of it might be balanced. Although technically true, this view does not take into account that the founders also believed in the separation of power to ensure a just and representative government for the people. Judge Alito believes strongly in the unitary executive theory, which views restrictions on presidential power as unconstitutional. It is this view that led Sen. Kennedy (D-Mass) to state that the executive-power issue will be a crucial road block in his confirmation. Quoth Kennedy: “when we have a president who wants to stretch his powers to and beyond constitutional limits, we need judges who can be independent of the president and act to preserve the balance of powers that provide a strong and fair foundation for our free society. [emphasis my own]”

Eliminating the right to Abortion

Although I mentioned Judge Alito’s inclination to overturn Roe v. Wade in my past article, the most recently released memo adds an even more disturbing piece evidence that speaks to how he sees this issue. In this memo, Judge Alito describes a disturbingly deliberate and well thought out strategy for a piece by piece dismantling of Roe v. Wade. It’s a strategy for lower courts and state government to not only eliminate a woman’s right to choose, but also attack the very premise upon which it was based - the American right to privacy. In the memo, Alito discusses the need for an incremental approach, as opposed to a “frontal assault on Roe v. Wade.” He believes that the best way to fight against Roe v. Wade is to “mitigate its effects” by using the ambiguity still present in the statue that will allow for even more strenuous restriction and regulation of abortions - which, in some cases, will make them impossible for people to receive even if necessary for their health. Similar legislation is already negatively affecting the lives of women in South Dakota, and we certainly don’t want that affect to go nationwide. By following this plan of action, he believes Roe v. Wade will be reduced to an insignificant ruling. He has previously argued for spousal notification and other restrictions that make the ability of a woman to get an abortion much harder then it was before; who knows what he will do once on the court.

What this means

As Senator Patrick Leahy said, the evidence presented in these recently unearthed documents “fill[s] in more blanks and deepen[s] the impression of activism that colors Judge Alito’s career”. A recent study was done by a University of Chicago law professor which found that 91% of Judge Alito’s dissents take positions which are much more conservative then those of his would-be conservative colleagues on the bench. He has argued in favor of a strip-search of a 10 yr old girl accused of no criminal wrongdoing, supported warrantless surveillance of a criminal suspect when no other court supported the practice, and has tried to strip other courts of the ability to grant habeas corpus rights to undocumented immigrants. He is also heavily in favor of removal of regulations of business, much like Chief Justice Roberts is, with his most notable attack of regulation was his notorious argument against a federal ban of machine guns, arguing that it violates the Constitution’s commerce clause. This position, which is even more radical than Chief Justice Robert’s view on the Endangered Species Act, could also lead him to shred not only gun-control statues, but also environmental laws and other congressional actions. His views, which seem to threaten the environmental laws which were fought for so hard by the environmental lobby, have led the Sierra Club to come out strongly against Alito. This has not happened since Robert Bork in 1987.

While Judge Alito will obviously try and backpedal from this activist record of decisions, he still appears to be a nominee who is committed to intrusive government that is far out of step with the public and the Constitution, and does not warrant a confirmation to a court where he could force his views on the people of this country.