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Should Filipinos oppose the
nomination
of Judge Samuel A. Alito, Jr.?
San Diego, CA. With barely two-weeks to go before the Senate
Judiciary Committee starts its confirmation hearing on January 9,
2006, there is not a whole lot of information regarding President
Bush’ substitute nominee to fill the seat of retiring Justice
Sandra Day O’Connor. Judge Samuel Alito’s name was nominated after
Harriet Miers was thumbed down by the president’s own party
conservatives.
Judge Alito is a jurist with 30 years experience including 15
years on the bench as federal appeals court judge. Alito received
his law degree from Yale University in 1975. Starting as a law
clerk in 1976, he became an assistant U.S. attorney and U.S.
attorney for the District of New Jersey in the late 70’s and
mid-80’s. He was also Assistant U.S. solicitor general and later
deputy assistant U.S. attorney general in the Justice Department
under President Ronald Reagan.
Alito’s record which has come under close scrutiny since the Miers
nomination was withdrawn, shows that he is a frequent dissenter
with a reputation for having one of the sharpest conservative
minds in the country - a judicial conservative.
In a Knight Ridder story a month ago, reporters Stephen Henderson
and Howard Mintz wrote, “Although Alito’s opinions are rarely
written with obvious ideology, he’s seldom sided with a criminal
defendant, a foreign national facing deportation, an employee
alleging discrimination or consumers suing big business.”
The reporters also concluded that Alito “rarely supports
individual rights,” shows “a strong deference to police authority”
and is extremely skeptical about claims of racial discrimination.
Henderson covers the Supreme Court for Knight Ridder. Mintz, a
reporter for the San Jose Mercury News, a Knight Ridder paper,
worked on the Alito project during a stint in Washington.
The Washington Post editorial on December 17 questions Alito’s
“inclination to protect businesses from marginal civil rights
claims and to make it more difficult for those who say they were
discriminated against to win redress in the courts. The Post cited
that in several prominent cases, Judge Alito has displayed a more
skeptical attitude than have his colleagues toward claims of race
and gender discrimination and has tended to embrace narrow
readings of important federal anti-discrimination laws.”
Law Find – a web browser for legal matters put together a
selection of high-profile cases on abortion, First Amendment,
criminal, immigration, civil rights, employment and education
cases with written opinions by Judge Alito since his 1991
appointment to the U.S. Court of Appeals for the Third Circuit. A
review of his opinions support the Knight Ridder story and Post
editorial.
Critics believe Alito will sway the high court to the right and
for good reasons. Justice Sandra Day O’Connor was a voice of
moderation in the Supreme Court and has cast the deciding vote in
crucial civil liberties issues ranging from race to religion to
reproductive freedom.
According to published reports, Judge Samuel A. Alito Jr. voted in
1991 to uphold a Pennsylvania statute that would have required at
least some married women to notify their husbands before getting
an abortion; a year later, Justice Sandra Day O’Connor cast a
decisive fifth vote at the Supreme Court to strike it down.
In 2000, Alito ruled that a federal law requiring time off for
family and medical emergencies could not be used to sue state
employers for damages; three years later, O’Connor was part of a
Supreme Court majority that said it could.
And last year, Alito upheld the death sentence of a convicted
Pennsylvania murderer, ruling that his defense lawyers had
performed up to the constitutionally required minimum standard.
When the case reached the Supreme Court, O’Connor cast a fifth
vote to reverse Alito.
More recently and in the wake of the brewing concern that
President Bush authorized illegal wiretappings on American
citizens, Alito’s previous argument that the nation’s top law
enforcement official deserves blanket protection from lawsuits
when acting in the name of national security, even when those
actions involve the illegal wiretapping of American citizens is
troubling at best.
As a lawyer in the Reagan Justice Department, Alito said in a
recently published memo that the attorney general must be free to
take steps to protect the country from threats such as terrorism
and espionage without fear of personal liability. But in a 1984
memo involving a case that dated to the Nixon administration,
Alito also cautioned his superiors that the time may not be right
to make that argument and urged a more incremental approach. Is
now the right time?
This revelation is particularly relevant given the ongoing debate
in the U.S. Senate whether to extend the Patriot Act and with the
upcoming senate inquiry as to the constitutionality of the
president’s authorization to conduct wiretapping sans a search
warrant.
Based on his record particularly on some of the most contentious
issues that came before the high court, Alito has been to the
right of the centrist swing voter he would replace. Consequently,
many legal analysts across the spectrum saw the Alito appointment
as a bid by President Bush not only to appease the Republican
Party conservatives who dumped the Miers nomination but also to
tilt the court, currently evenly divided between left and right,
in a conservative direction.
Indeed, Alito’s nomination calls into question the court’s
delicate balance that Justice O’Connor has helped to shape and
preserve. His ascendancy to the Supreme Court is not a portent of
good things for individual rights particularly for minorities and
immigrants. Filipinos should oppose his nomination.
