Memo for Consideration on Supreme Court Nominee Alito
For Consideration by JALSA Executive Committee, Memo on Samuel Alito
Prepared by Andrew Fischer, Chair, Judicial Nominations, CLSA
The following memo has been prepared for the JALSA Board's consideration. The JALSA Board has indicated a concern over positions and opinions reported by Judge Alito.
Each day brings new revelations of nominee Samuel Alito's extreme right wing views on a wide range of issues. It is now clear that these views are not limited to his belief that there is no constitutional right to abortion (his exact words are "I personally believe very strongly . . . . [that] the Constitution does not protect a right to an abortion.")
It has become clear from his (often minority) opinions that Alito’s views on Federalism bespeak what legal scholar Jeffrey Rosen and others are describing as a “conservative judicial activism”. Alito's opinions reflect the extreme conservative “originalism” theory of “the Constitution in exile” that would undo a panoply of Federal reforms ranging from environmental protection to family leave to OSHA and the enforcement of labor rights, basically undoing the judicial protections of the last century.
This is what is so frightening about Judge Alito’s dissent in United States v Rybar (1996), where he argued that the Federal restrictions on machine gun possession are unconstitutional. His basis for this was that the commerce clause did not permit such Federal regulation. Alito showed the same extremist belief in the limits of Federal authority in holding that Congress does not have the authority to give state employees the right to sue for violations of the Family and Medical Leave Act in Chittister v Department of Community and Economic Development (2000), a view that was rejected by the current Supreme Court in Nevada Dept. of Human Resources v Hibbs, (2003), but may become the new law of the land if he is confirmed.
This is only one of many opinions in which Alito stood in sole dissent or was later reversed by a Supreme Court whose balance would be tipped by his extremist views on Federalism. His “Constitution in exile” view Jeffrey Rosen explains that the doctrines believed to have been exiled “were largely abandoned in the 1930s to allow the federal government broad discretion to regulate health, safety, the environment, and the workplace. The most important of the post_New Deal doctrines was an expansive interpretation of Congress's power to regulate interstate commerce, which the Court extended to include any activities that might affect commerce indirectly." This expansion of Congress' power permitted the passage of legislation, which would not have been permissible under the conservative Constitution in Exile, as first described by Judge Ginsburg, such as the Civil Rights Act of 1964, the Social Security Act, and the National Labor Relations Act of 1935. , as espoused by others (but consistent with his expressed opinions on the limits of Federal power in Rybar and Chittister and elsewhere) would find many environmental protection laws unconstitutional as not involving commerce, would hold OSHA and fair labor laws as unconstitutional or radically limit them to a much narrower view of what was in “interstate commerce”, would undo not just affirmative action - or “racial and ethnic quotas”, in his words - but the one man one vote legacy of the civil rights act.
His opposition to reapportionment, the basis for his disdain for the Warren Court, is only one of the latest surprises. This is another extremist view, given the near "universal acceptance" of Reynolds v. Sims, the 1964 case that required state legislatures to demarcate Congressional districts of equal population.
This is what is so frightening about the Rybar dissenting opinion: it exposes the extreme limits that Alito would place on the ability of Congress to provide for the general welfare of the people, the common basis of our understanding of the government.
More particular to JALSA and Jewish interests, are Alito’s views on separation of church and state, especially in a time when the religious right wants to replace the First Amendment protections separating church and state with the notion that we are Christian nation. In ACLU of New Jersey v Black Horse Pike Regional Board of Education (1996), Alito joined a dissent arguing that a public school could get around an earlier Supreme Court ruling barring school-approved, clergy led prayer by having students lead the prayers. This was rejected by the Supreme Court in Santa Fe Independent School Dis. v Doe (2000), but may become the law of the land if Alito is confirmed.
Alito also wrote, in ALCU v Schundler, (1999), that a town’s religious Christmas display was not a violation of the First Amendment because the town later added secular symbols like Frosty the Snowman, a view also later rejected by the Supreme Court, in McCreary County v ACLU (2005), but a view that could become a further undoing of the First Amendment establishment clause if Alito is confirmed.
An example of where Alito would go is in Child Evangelism Fellowship of NJ v Stafford Twnshp. School Dis. (2004). The Child Evangelism Fellowship [CEF], which describes itself as “a bible centered, worldwide organization composed of born-again believers whose purpose is to evangelize boys and girls”, sought to post its materials in the schools, participate in back to school nights and distribute materials there. Although the school district already allowed CEF to meet in public schools, it rejected CEF’s request to have the schools distribute CEF materials together with school handouts and to allow CEFat back to school nights. Alito found for CEF, accusing the school district of “view point discrimination”. Given the two 5-4 decisions on the Ten Commandments this past term and the present fervor of the radical religious right, putting Alito on the Court could create a great threat to the religious freedom Jews and other non-Christians have enjoyed in America, perhaps a greater threat than we have ever faced.
Alito’s extremist opinions extend to the Fourth Amendment protections, as well. In Doe v Groody, Alito dissented from the opinion of now Homeland Security Director, longtime Federal Prosecutor and then fellow Third Circuit Justice Michael Chertoff, arguing that a strip search of a mother and her 10 year old daughter was permissible, even though they were neither suspected of any crime nor named in the search warrant. Doe v Groody is one of over a dozen Alito dissents all of which oppose majority opinions protective of individual rights.
Similarly, Alito has dissented from decisions to overturn death sentences (Riley v Taylor, (2001)) and has voted to uphold a criminal conviction, even though Blacks were excluded from the jury (Ramseur v Beyer, (1992), cert denied ) He has voted consistently to deny claimants access to judicial relief in employment and other discrimination cases.
On any and every issue, Alito’s record is becoming all too clear, but two areas in particular should give us grave concerns. His lack of understanding of the separation of church and state threatens the religious freedom we have enjoyed in this country and his following of the “Constitution in exile” philosophy of limiting the power of Federalism threatens the social progress of the Twentieth Century that we have come to accept. JALSA and all of us must openly oppose his confirmation before it is too late.
Prepared by Andrew Fischer, Chair, Judicial Nominations, CLSA
The following memo has been prepared for the JALSA Board's consideration. The JALSA Board has indicated a concern over positions and opinions reported by Judge Alito.
Each day brings new revelations of nominee Samuel Alito's extreme right wing views on a wide range of issues. It is now clear that these views are not limited to his belief that there is no constitutional right to abortion (his exact words are "I personally believe very strongly . . . . [that] the Constitution does not protect a right to an abortion.")
It has become clear from his (often minority) opinions that Alito’s views on Federalism bespeak what legal scholar Jeffrey Rosen and others are describing as a “conservative judicial activism”. Alito's opinions reflect the extreme conservative “originalism” theory of “the Constitution in exile” that would undo a panoply of Federal reforms ranging from environmental protection to family leave to OSHA and the enforcement of labor rights, basically undoing the judicial protections of the last century.
This is what is so frightening about Judge Alito’s dissent in United States v Rybar (1996), where he argued that the Federal restrictions on machine gun possession are unconstitutional. His basis for this was that the commerce clause did not permit such Federal regulation. Alito showed the same extremist belief in the limits of Federal authority in holding that Congress does not have the authority to give state employees the right to sue for violations of the Family and Medical Leave Act in Chittister v Department of Community and Economic Development (2000), a view that was rejected by the current Supreme Court in Nevada Dept. of Human Resources v Hibbs, (2003), but may become the new law of the land if he is confirmed.
This is only one of many opinions in which Alito stood in sole dissent or was later reversed by a Supreme Court whose balance would be tipped by his extremist views on Federalism. His “Constitution in exile” view Jeffrey Rosen explains that the doctrines believed to have been exiled “were largely abandoned in the 1930s to allow the federal government broad discretion to regulate health, safety, the environment, and the workplace. The most important of the post_New Deal doctrines was an expansive interpretation of Congress's power to regulate interstate commerce, which the Court extended to include any activities that might affect commerce indirectly." This expansion of Congress' power permitted the passage of legislation, which would not have been permissible under the conservative Constitution in Exile, as first described by Judge Ginsburg, such as the Civil Rights Act of 1964, the Social Security Act, and the National Labor Relations Act of 1935. , as espoused by others (but consistent with his expressed opinions on the limits of Federal power in Rybar and Chittister and elsewhere) would find many environmental protection laws unconstitutional as not involving commerce, would hold OSHA and fair labor laws as unconstitutional or radically limit them to a much narrower view of what was in “interstate commerce”, would undo not just affirmative action - or “racial and ethnic quotas”, in his words - but the one man one vote legacy of the civil rights act.
His opposition to reapportionment, the basis for his disdain for the Warren Court, is only one of the latest surprises. This is another extremist view, given the near "universal acceptance" of Reynolds v. Sims, the 1964 case that required state legislatures to demarcate Congressional districts of equal population.
This is what is so frightening about the Rybar dissenting opinion: it exposes the extreme limits that Alito would place on the ability of Congress to provide for the general welfare of the people, the common basis of our understanding of the government.
More particular to JALSA and Jewish interests, are Alito’s views on separation of church and state, especially in a time when the religious right wants to replace the First Amendment protections separating church and state with the notion that we are Christian nation. In ACLU of New Jersey v Black Horse Pike Regional Board of Education (1996), Alito joined a dissent arguing that a public school could get around an earlier Supreme Court ruling barring school-approved, clergy led prayer by having students lead the prayers. This was rejected by the Supreme Court in Santa Fe Independent School Dis. v Doe (2000), but may become the law of the land if Alito is confirmed.
Alito also wrote, in ALCU v Schundler, (1999), that a town’s religious Christmas display was not a violation of the First Amendment because the town later added secular symbols like Frosty the Snowman, a view also later rejected by the Supreme Court, in McCreary County v ACLU (2005), but a view that could become a further undoing of the First Amendment establishment clause if Alito is confirmed.
An example of where Alito would go is in Child Evangelism Fellowship of NJ v Stafford Twnshp. School Dis. (2004). The Child Evangelism Fellowship [CEF], which describes itself as “a bible centered, worldwide organization composed of born-again believers whose purpose is to evangelize boys and girls”, sought to post its materials in the schools, participate in back to school nights and distribute materials there. Although the school district already allowed CEF to meet in public schools, it rejected CEF’s request to have the schools distribute CEF materials together with school handouts and to allow CEFat back to school nights. Alito found for CEF, accusing the school district of “view point discrimination”. Given the two 5-4 decisions on the Ten Commandments this past term and the present fervor of the radical religious right, putting Alito on the Court could create a great threat to the religious freedom Jews and other non-Christians have enjoyed in America, perhaps a greater threat than we have ever faced.
Alito’s extremist opinions extend to the Fourth Amendment protections, as well. In Doe v Groody, Alito dissented from the opinion of now Homeland Security Director, longtime Federal Prosecutor and then fellow Third Circuit Justice Michael Chertoff, arguing that a strip search of a mother and her 10 year old daughter was permissible, even though they were neither suspected of any crime nor named in the search warrant. Doe v Groody is one of over a dozen Alito dissents all of which oppose majority opinions protective of individual rights.
Similarly, Alito has dissented from decisions to overturn death sentences (Riley v Taylor, (2001)) and has voted to uphold a criminal conviction, even though Blacks were excluded from the jury (Ramseur v Beyer, (1992), cert denied ) He has voted consistently to deny claimants access to judicial relief in employment and other discrimination cases.
On any and every issue, Alito’s record is becoming all too clear, but two areas in particular should give us grave concerns. His lack of understanding of the separation of church and state threatens the religious freedom we have enjoyed in this country and his following of the “Constitution in exile” philosophy of limiting the power of Federalism threatens the social progress of the Twentieth Century that we have come to accept. JALSA and all of us must openly oppose his confirmation before it is too late.
posted by JALSA at 8:10 PM
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