Anatomy of a Cross-Blog Protest – Alito is Toast!

Taken from Wikipedia

Reaction to the nomination

In general, initial reaction to Alito’s nomination was strongly positive from conservative and Republican Party commentators, and generally negative from liberals and Democratic Party members.

Many Democrats have voiced opposition to his nomination to the Supreme Court. Senate Minority Leader Harry Reid (D-NV), who had publicly supported Miers’ nomination, made a statement saying, “Conservative activists forced [Harriet] 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.” [17] Reid also stated that Alito’s nomination “would create a lot of problems.” [18] Ted Kennedy (D-MA) said that Alito’s nomination is “based on weakness, not strength.” [19] Senator John Kerry (D-MA) released a statement saying that, “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.” [20] Ralph Neas, president of the People For the American Way, said that “President Bush put the demands of his far-right political base above Americans’ constitutional rights and legal protections.” Senator Ben Nelson (D-NE) disagreed with other Democrats on Alito’s nomination, saying that Alito would not “hammer away and chisel away” exisiting law. [21]

Supporters of the president counter Democratic opposition by arguing that the “far right wing” is a key segment of American society that deserves an equal voice and equal representation. They point out that President Bush promised those who would vote for him that he would appoint a justice to the Supreme Court that would be a so-called strict constructionist, and now he is fulfillling his campaign promise.

Alito was confirmed unanimously to the 3rd U.S. Circuit Court of Appeals in Philadelphia in 1990. Some Democrats, such as Senator Kennedy, who praised Alito during that confirmation process now oppose his nomination to the Supreme Court, saying 15 years of judicial rulings and opinions have changed their view.

NARAL Pro-Choice America, a women’s rights group, said that the nomination of Alito would threaten “fundamental freedoms, including a woman’s right to choose.” The National Pro-Life Action Center, which “supports the sanctity of human life from conception to natural death”, said that Alito’s “It appears that President Bush has heeded the call of pro-life Americans and nominated Judge Samuel Alito, Jr. to the United States Supreme Court.”[22]

Reaction from Republicans has been more positive than the response to Miers’ nomination. Senator Orrin Hatch (R-UT) commented that, “President Bush has hit a home run by selecting Sam Alito.” [23] Senator Sam Brownback (R-KS) also voiced his support: “I commend the president and congratulate Judge Alito on this nomination.” [24]

Likewise, reaction from usually Republican aligned interest groups has largely been positive, with Progress for America already launching a televised ad lauding his nomination. [25] The group commented: “No one can argue that Judge Alito is anything but extremely well qualified for the Court and his unanimous confirmation to the Third Circuit Court of Appeals will undermine any attempt by liberals to argue that he is a ideologue.” [26]

Some politicans have called for both sides to wait until Senate hearings begin before supporting or opposing Alito’s nomination. Senator Dianne Feinstein (D-CA), who voted against Roberts when he was nominated for Chief Justice, said, “I would hope that people on both sides would hold their fire, allow the Judiciary Committee to do its work, and not take a position until that work is completed.” [27]

Case history

Abortion

    * Samuel Alito supported limited abortion rights in 3 out of 4 rulings as described below. [28]

    * 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. Judge Alito wrote:

        “[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.”

    The Supreme Court ruled against Alito’s position in a plurality decision, in which five justices ruled that a parental notification requirement violated the woman’s rights. Rehnquist’s dissent quoted Judge Alito and expressed support for his reasoning.

    * A majority opinion in Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127 (3rd Cir. 2000), [29] 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.

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Federalism

    * A dissenting opinion in United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), arguing that a U.S. law banning private citizens from owning submachine guns was outside the authority of Congress under the Commerce Clause of the U.S. Constitution in light of the then recently decided United States v. Lopez.
    * A majority opinion in Chittister v. Department of Community & Economic Development, 226 F.3d 223 (3d. Cir. 2000), which held that due to sovereign immunity states could not be sued under the Family and Medical Leave Act.

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First Amendment

    * A majority opinion in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) [30], 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:[31]

        [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 satisfy strict scrutiny.

    * A majority opinion [32] in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999), addressing the circumstances under which a government-sponsored holiday display may or may not contain religious symbols. The case held that a holiday display consisting solely of religious symbols was impermissible, but a mixed display including both secular and religious symbols was permissible if balanced in a generally secular context. The decision relied on a previous Supreme Court decision that had permitted such mixed displays. The ACLU had argued that a previous city display that was ruled unconstitutional because it lacked secular symbols colored the purpose of the new display.

    * A dissenting opinion in C.H. v. Oliva et al. (3rd Cir., 2000)[33] 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

    * A unanimous opinion in Police v. City of Newark, 1999; [34] allowing Muslim police officers in Newark to keep their beards because “the Department makes exemptions from its policy for secular reasons and has not offered any substantial justification for refusing to provide similar treatment for officers who are required to wear beards for religious reasons.”

    * A unanimous opinion in The Pitt News v. Pappert, 2004, [35] upholding the right of student newspapers to carry alcohol advertisements on First Amendment grounds. “If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment. “

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Harassment and discrimination

    * A majority opinion in Williams v. Price, 343 F.3d 223 (3d Cir. 2003), [36] 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.
    * A dissenting opinion in Sheridan v. Dupont, 74 F.3d 1439 (3d Cir. 1996)(en banc). [37]. Alito would have required a plaintiff to meet a higher standard of evidence to survive a motion for summary judgment in a sex discrimination case, agreeing with a ruling by the 5th Circuit. Alito earlier wrote the majority opinion when the case was heard before a three-judge panel, [38] expressing a preference for the 5th Circuit’s reasoning, but ruling according to 3rd Circuit precedent.
    * A dissenting opinion in Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997), [39] arguing that, when a Marriott housekeeping manager sued Marriott over being allegedly denied promotion on the basis of race, summary judgment in favor of the defendant was appropriate because the plaintiff had not presented enough evidence to allow a reasonable jury to conclude that every one of the reasons Mariott offered for having promoted someone else was a mere pretext. The majority responded that finding in favor of Marriott would have protected racist employers by “immuniz[ing] 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.”

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Other case decisions

    * A majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), rejecting an Iranian woman’s petition for review of a deportation ruling and denying her asylum in the U.S. in spite of her gender and feminist ideas and the human rights issues in her home country. The opinion did establish, however, that women in slightly different situations might be able to establish an asylum claim if they would absolutely refuse to wear Islamic dress and would face death as a result.
    * A majority opinion in Shore Regional High School Board of Education v. P.S., 381 F.3d 194 (3d Cir. 2004) [40], reinstating an administrative law judge’s ruling in favor of parents who claimed the school system’s failure to protect their child from bullying justified their placing him in a different high school.
    * A dissenting opinion in Homar v. Gilbert, 89 F.3d 1009 (3d Cir. 1996), arguing that a state university need not hold a hearing before suspending a campus policeman without pay after he had been arrested on drug charges. The Supreme Court later agreed with Alito.
    * A majority opinion in Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004), [41] a copyright case discussing the issue of originality. Alito held that “the creative spark… utterly lacking in [a part’s numbering system, and thus] these numbers are examples of works that fall short of the minimal level of creativity required for copyright protection.”
    * A majority opinion in United States v. Lee, 359 F.3d 194 (3rd Cir. 2004). Alito rejected a defendant’s argument that his Fourth Amendment rights were violated by the introduction into evidence of a videotape recording of a meeting with an informant who consented to the videotaping.
    * In a dissent to Doe v. Groody, Alito argued that qualified immunity should have protected police officers from a finding of having violated constitutional rights when they strip-searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized the search of a residence. The mother and daughter were not referred to in the warrant, although the affidavit with the warrant requested permission to “search all occupants of the residence and their belongings”. The court’s opinion found that the warrant did not grant such permission, arguing that references to the affidavit in the Warrant were specific and the omission of the language in question from the warrant was not found to be the result of an error, clerical or otherwise.[42]

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Conflict of interest question

On a questionnaire for the Senate Judiciary Committee in his 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 .

On November 10, Judge Alito wrote Senator Specter, the chairman of the Senate Judiciary Committee, explaining his participation in the case [43]. 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.”