Opposing Judge Alito

I've decided to come out early in opposition to Judge Samuel Alito's confirmation to the U.S. Supreme Court. As our longtime readers know, I never did oppose the confirmation of Chief Justice John Roberts because I was never convinced that he was a far-right extremist. I am, however, convinced that Judge Alito is a far-right extremist and I don't want to see him on the nation's highest court; I don't want to see him partially responsible for the definitive interpretation of our Constitution.

My reasoning for this has nothing to do with Roe v. Wade or abortion, although it is quite clear that Judge Alito will be a vote to at least restrict legal abortion if not overturn Roe altogether. At this point, I have an ambiguous opinion of Roe and abortion rights. I continue to maintain that it would do more harm than good to overturn the ruling, but I'm also of the opinion that certain legal restrictions on abortion are called for. And I am completely opposed to the idea of abortion as a moral choice. One might say that I am neither supportive of Roe nor the suggestion of overturning it. I think it was a mistake that was made by judicial activism and bad jurisprudence, and I think that it is a mistake that cannot now be easily undone by more judicial activism. But let me say it more clearly: Roe v. Wade is not a factor in my opposition to Judge Alito's confirmation. Period.

So why have I decided to oppose his confirmation?

• Although Judge Alito favors restriction of abortion rights, he opposes lawsuits claiming wrongful death for stillborn children. Although Judge Alito twice tried to thwart Roe v. Wade in Planned Parenthood v. Casey and Planned Parenthood v. Farmer, he opposed the identification of a stillborn child as a person in Alexander v. Whitman. Not only is this an inconsistent application of his judicial opinion, it also indicates that Judge Alito will apply precedent when it serves the interests of his ideology but not when it doesn't. This is judicial activism.



• Judge Alito is weak on privacy rights unrelated to abortion. In Doe v. Groody, Judge Alito wrote a dissenting opinion that granted qualified immunity to police officers who strip-searched a woman and her ten-year-old daughter during a drug raid, even though the woman and her daughter were not mentioned in the warrant.



• Judge Alito takes a narrow view of the Commerce Clause. This was one of my concerns about Chief Justice Roberts, as well. In United States v. Rybar, Judge Alito wrote a dissenting opinion that expressed a narrow view of the Commerce Clause when applied to the sale of machine guns. He did this again in the majority opinion for Chittister v. DCED, this time in relation to the Family and Medical Leave Act -- and this opinion would have rendered Congress unable to apply FMLA to state employees. The Supreme Court later effectively reversed the Third Circuit decision and others like it in Nevada v. Hibbs, a 6-3 ruling in which then-Chief Justice Rehnquist and Justice Sandra Day O'Connor ruled with the majority. It is conceivable that Chief Justice Roberts and Judge Alito could shift the balance of the court and overturn Nevada v. Hibbs, making it a 5-4 decision to overturn the precedent. It is also conceivable that Roberts and Alito could side with Scalia, Thomas, and Kennedy (the three dissenters in Nevada v. Hibbs) on other Commerce Clause cases to issue 5-4 rulings that would limit the power of Congress under the Commerce Clause, which could upset our entire governmental system. This is, without question, the most important factor in my opposition to Judge Alito's confirmation.



• Judge Alito is simply too dangerous. In Rompilla v. Horn, Judge Alito led the majority in refusing to provide relief for an inmate who had been sentenced to death but whose defense attorneys failed to consider material that may have mitigated his sentence. Rompilla appealed to the Supreme Court and it overturned the Third District ruling, with Justice Sandra Day O'Connor as the fifth swing vote in the 5-4 decision. With Judge Alito replacing Justice O'Connor, it is clear that such decisions will now swing the other way. Judge Alito is simply too dangerous. The balance of the Supreme Court is at risk, and Judge Alito will without question shift the court much too far to the right.

It is clear to me that Judge Alito will alter the balance of the Supreme Court in more ways than one. What is not clear to me is whether or not his nomination will have any lasting effect on abortion rights. When Planned Parenthood v. Casey was decided in 1992, it was a 5-4 decision, but if it were revisited today with Justice O'Connor on the bench it would be a 6-3 decision because the composition of the Supreme Court has changed since 1992. If Judge Alito replaces Justice O'Connor and the decision is revisited, it will in all likelihood be a 5-4 decision in favor of the precedent, with Alito joining Roberts, Thomas, and Scalia in the dissenting opinion. It seems that the only real effect that Judge Alito will have on legal abortion is in making its situation more tenuous. It must be noted that all of the majority who would currently vote to uphold the 1992 decision are over the age of 65, while by contrast the dissenters with the exception of Justice Scalia are all much younger -- Roberts is 50, Alito is 55, Thomas is 57, and Scalia is 69. Justice John Paul Stevens is 85-years-old; his retirement or death before President Bush's term is over could indeed tip the balance against the 1992 decision and thus against Roe v. Wade.

We may find out soon what impact President Bush's nominations will have on abortion rights in a pending case, Ayotte v. Planned Parenthood. It is scheduled to be argued on November 30, and will deal with the issue of parental notification. It is unlikely that Judge Alito will be confirmed in time to rule on this case -- I'll go out on a limb and say it's impossible -- but we will at least be able to see how Chief Justice Roberts will rule.

In the nearer future, Judge Alito could have a devastating impact on other important decisions in which Justice O'Connor was the swing vote. It is imperative that we maintain moderation on the Supreme Court in order to ensure that our Constitution is authentically interpreted and our democracy preserved. That's why I have decided to oppose Judge Alito's confirmation to the Supreme Court and why I continue to hope for a moderate nominee from President Bush.