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Bush Selects Alito for Supreme Court

By Fred Barbash and Peter Baker
Washington Post Staff Writers
Monday, October 31, 2005; 8:42 AM

President Bush today named appeals court Judge Samuel A. Alito Jr. to the U.S. Supreme Court. Alito, 55, serves on the Philadelphia-based U.S. Court of Appeals for the Third Circuit, where his record on abortion rights and church-state issues has been widely applauded by conservatives and criticized by liberals.

Alito, appointed to the appeals court in 1990 by George H.W. Bush, has been a regular for years on the White House's short list for the high court. He was also among those proposed by conservative intellectuals as an alternative to Harriet Miers, the White House counsel who withdrew as the nominee last week.

Some Democrats, including Senate minority leader Harry Reid (D-Nev.), have threatened to oppose Alito, however. Immediately after the announcement, the liberal activist organization People for the American way announced the launch of a "massive national effort" to prevent Alito's confirmation.

Alito is Bush's second choice in a month for the seat being vacated by Justice Sandra Day O'Connor, who has announced her retirement but has remained on the court pending confirmation of a successor.

Bush, fresh from withering criticism of Harriet Miers for her lack of judicial experience, stressed Alito's many years of litigation experience, first arguing 12 cases before the Supreme Court and then his years as an appeals court judge. Bush said Alito was the most experienced nominee in 70 years. Fresh from questions about Mier's intellect, Bush highlighted the fact that Alito went to the Yale Law School, where he was an editor of the prestigious law review. Bush called Alito "brilliant."

Alito's resume, including his service in the Justice Department during the Reagan administration, is very much unlike Miers's, who had no appellate experience, and very much like that of Chief Justice John Roberts.

Like Roberts, Alito served during the Reagan administration in the office of the Solicitor General, which argues on behalf of the government in the Supreme Court.

Unlike Roberts, he has opined from the bench on both abortion rights, church-state separation and gender discrimination to the pleasure of conservatives and displeasure of liberals.

While he has been dubbed "Scalito" by some lawyers for a supposed affinity to conservative Supreme Court Justice Antonin Scalia and his Italian-American heritage, most observers believe that greatly oversimplifies his record.

Alito is considered far less provocative a figure than Scalia both in personality and judicial temperament. His opinions and dissents tend to be dryly analytical rather than slashing.

In addition, his appeals court record is not uniformly conservative on the sorts of issues that arise in Supreme Court confirmation battles.

In 2004, he ruled in favor of a complaint brought under the Individuals with Disabilities Education Act by a boy badly bullied by his classmates who was seeking legal relief but had been rebuffed by a U.S. District Court.

He also authored a majority opinion granting federal court review to an African American who could not get state courts to hear his claim of racial bias on the part of a juror in his trial. The case involved a juror who used racial epithets outside the confines of the jury room.

His record on the appeals court makes Alito less liable to suggestions made about Roberts, with only two years as a judge, that he is somehow a judicial mystery.

Rather, liberals are likely to focus on his opinions and dissents, most notably in the 1991 case, Planned Parenthood v. Casey.

In that case, Alito joined joined a Third Circuit panel in upholding most of a Pennsylvania law imposing numerous restrictions on women seeking abortions. The law, among other things, required physicians to advise women of the potential medical dangers of abortion and tell them of the alternatives available. It also imposed a 24-hour waiting period for abortions and barred minors from obtaining abortions without parental consent.

The panel, in that same ruling, struck down a single provision in the law requiring women to notify their husband's before they obtained an abortion. Alito dissented from that part of the decision.

Citing previous opinions of O'Connor, Alito wrote that an abortion regulation is unconstitutional only if it imposes an undue burden on a woman's access to the procedure. The spousal notification provision, he wrote, does not constitute such a burden and must therefore only meet the requirement that it be rationally related to some legitimate government purpose.

"Even assuming that the rational relationship test is more demanding in the present context than in most equal protection cases, that test is satisfied here," he wrote.

"The 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.

"In addition," he wrote, "the legislature could have reasonably concluded that Section 3209 [the spousal provision] would lead to such discussion and thereby properly further a husband's interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure. . . . The Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it "unwise" or worse. "

The case ultimately reached the Supreme Court, which upheld the appeals court decision, disagreed with Alito and also used the case to reaffirm its support for Roe v. Wade , the 1973 decision legalizing abortion.

On the spousal notification provision, O'Connor wrote for the court that it did indeed constitute an obstacle. The "spousal notification requirement is . . . likely to prevent a significant number of women from obtaining an abortion," she wrote.

"It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases," she said.

Plus, it "embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry, " she said.

"The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family."

While lauded by conservatives, Alito has also been criticized by women's rights organizations for his 1996 dissent in a sex discrimination case, Sheridan v. Dupont , in which he argued that the Third Circuit that had made it too easy for discrimination complaints to reach a jury trial. The standards for deciding when a discrimination case reaches trial are hotly controversial as they determine whether such a case moves forward at all.

The dissent ended a significant dispute in the circuit over the analytical framework for granting summary judgments dismissing a complaint without a trial under Title VII of the Civil Rights Act of 1964.

Alito initially challenged the existing framework and prevailed when the case was before a three-judge panel. He lost the battle when the full circuit ruled.

The widely discussed exchange in the Sheridan case illustrated both Alito's willingness to take on a potentially losing battle in the law and his approach to such battles, which, in that case, was calm, analytical and devoid of flamboyant rhetoric.

In the area of church and state, Alito has been consistently supportive of the conservative view that the courts should be more accommodating when considering state entanglement with religion. He wrote a majority opinion in ACLU v. Schundler , holding that a city's holiday display that included a creche and menorah did not violate the establishment clause of the First Amendment because it included secular symbols as well, such as Frosty the Snowman.
© 2005 The Washington Post Company

© MBM

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For all we know Miers was a decoy, because Alito is another radical rightwing lunatic:
    Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito 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." [Bray v. Marriott Hotels, link to 1997 case]
This is a generalization, but in my experience in New Jersey, whenever you see an ethnic white person (i.e., non-Anglo, 3rd or so generation immigrant), who grew up in a city in NJ that has since become ghettoized and majority black or Latino, if they become "conservative," their conservatism is usually race-driven more than anything else. That's because they view us in light of what "we did" to "their" city or neighborhood, and compare our experience to their families' experience of anti-immigrant bias back in the day.

Interestingly, while he's touted as this ultra-conservative, his abortion stance is not 100% against Roe, from what I've read of him. So guess what areas are earning him those ultra-rightwing stripes?

As Isome continues to hit us with the facts (love your posts, by the way), they will continue to confirm my fear that this guy, reppin' for Trenton, NJ, will fight to roll back rights gains like nobody we've seen. And if Kennedy doesn't take over O'Connor's role as the swing vote in those cases, Alito will have a majority in the SCt to do it with.

It'll go without saying that it's a wrap for reparations (as if it wasn't already), because 100 years from now, future black generations will be fighting for reparations for what we'll have suffered during the Alito era.
quote:
Originally posted by Vox:
This is a generalization, but in my experience in New Jersey, whenever you see an ethnic white person (i.e., non-Anglo, 3rd or so generation immigrant), who grew up in a city in NJ that has since become ghettoized and majority black or Latino, if they become "conservative," their conservatism is usually race-driven more than anything else. That's because they view us in light of what "we did" to "their" city or neighborhood, and compare our experience to their families' experience of anti-immigrant bias back in the day.


YOU KNOW, I'VE NOTICED THAT TOO!! Eek

I've noticed that alot of immigrants and non-WASP White people become hardcore Conservatives when they "make it" in this country. Probably because they are trying to compensate for their non-WASPiness by aligning with an ideology that will protect the interests of WASPs the hardest.

I notice the same thing about Cuban immigrants and some West African immigrants. They become hardcore Neocons to fit in with their White neighbors and not "rock the boat" to fit in at the country club. They are trying to assimilate.

quote:
Interestingly, while he's touted as this ultra-conservative, his abortion stance is not 100% against Roe, from what I've read of him. So guess what areas are earning him those ultra-rightwing stripes?

As Isome continues to hit us with the facts (love your posts, by the way), they will continue to confirm my fear that this guy, reppin' for Trenton, NJ, will fight to roll back rights gains like nobody we've seen. And if Kennedy doesn't take over O'Connor's role as the swing vote in those cases, Alito will have a majority in the SCt to do it with.


I some is awesome, isn't she? tfro

quote:
It'll go without saying that it's a wrap for reparations (as if it wasn't already), because 100 years from now, future black generations will be fighting for reparations for what we'll have suffered during the Alito era.


This is either going to be another roadblock for moderate Conservatives, Centrists, moderate Liberals and stong Lefists, or it's going to be another nail in the coffin for the Neocon movement. The Bush Admin. is already killing the Neocon movement that began in the 1970's.
quote:
This is either going to be another roadblock for moderate Conservatives, Centrists, moderate Liberals and stong Lefists, or it's going to be another nail in the coffin for the Neocon movement. The Bush Admin. is already killing the Neocon movement that began in the 1970's.


Good catch, Vox. I've also noticed the tendency. And for that reason Alito scares me.

But Empty Purnata, I don't see how you say that the Bush administration is killing the neo-con movement, when it seems that everyone of the movements policy objectives is becoming a reality, from the war in iraq to the roll-back of domestic civil rights (e.g., the patriot acts), to the blurring of the constitutional separation of powers lines between the legislative and executive branches.

From the little bit I've read, Alito's appointment would farther empower the executive branch. Which is scary because we currently have a congress without a spine.
quote:
Originally posted by Kweli4Real:

You know, although Alito is a staunch dyed in the wool conservative judicial activist, in the vein of Scalia, he never-the-less is head and shoulder above Meier pick. Only because we know where he is coming from and he will play by the well established rules.


Legal precedent, legal proceedings... all can be taught, learned. Compassion, humanity, mercy? Never!

From Friday's Washington Post;

"Their anger sprang from a feeling that the White House never introduced the Harriet Miers they know to the Senate or the country. That Miers is an accomplished lawyer with a deeply personal sense of justice that she acts out on a daily basis, they said. Selling her to the Republican right primarily as a Christian conservative simply didn't do her justice, they said.

For example, no senators ever heard about Caroline Ware. The single mother of nine came to Miers in the 1970s as a pro bono client who needed help with a name change. Miers did the paperwork, but what Ware, now 62, most remembers was what came afterward.

When Ware, a nurse's aide, was wrongfully arrested on a charge of forging an elderly client's name on a check, Miers came to the Dallas jail in the middle of the night, bailed her out and got the charge dropped. When Ware and her children were threatened with eviction, Miers put down $700 of her own money to keep them off the streets. When Ware was hospitalized for a nervous breakdown, Miers hired a registered nurse to care for her children. And then there was Christmas, when Miers would arrive with clothes and coats for each of Ware's children "” "and they were new!" Ware said.

˜She brought me back'

"I was just lost, really losing my mind, and she brought me back," Ware said from the living room of her small brick house in working-class west Dallas.

"Miers's close friends, partners and relatives said in interviews that she never told them about Ware or other pro bono clients, although they said they were not surprised by the story. Ware's name came to light in one of Miers's responses to a Judiciary Committee questionnaire."

Bush-Cheney never intended for Miers to be confirmed. You can read the full Washington Post article here.
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quote:
Originally posted by Vox:

It'll go without saying that it's a wrap for reparations (as if it wasn't already), because 100 years from now, future black generations will be fighting for reparations for what we'll have suffered during the Alito era.


For what it's worth, I see reparations flowing from the political process not judicial.

BTW - I can also see a growing liberal/progressive tide welling in America to counter this hardcore conservative one that's being jammed down our throats now. This move today could knock over the first domino that leads to a generation of liberal government - starting in 2008.
quote:
BTW - I can also see a growing liberal/progressive tide welling in America to counter this hardcore conservative one that's being jammed down our throats now. This move today could knock over the first domino that leads to a generation of liberal government - starting in 2008.

BTW - I can also see a growing liberal/progressive tide welling in America to counter this hardcore conservative one that's being jammed down our throats now. This move today could knock over the first domino that leads to a generation of liberal government - starting in 2008.


I have to say I admire your optimistic outlook. They are "taking back" the country. And we won't get it back...not politically .
MidLifeMan has a point.

Throughout American history (and world history in general really) everytime a hyper-conservative revolution takes over a nation, it eventually implodes and it is succeeded by a liberal/progressive revolution. That's what happened in the 1960's after the ultra-conservative 1950's. That's what also happened in the 1910's after the ultra-conservative 1890's, and in the 1940's after the economically conservative 1920's.


This is the human history of progress. Change beings to happen, then conservatives oppose it and put brakes on the change. They ultimately prevent change from happening too fast, and they wear themselves out. By the time the conservatives wear out, the progressive movement is well-refined and moves human progress forward.

Liberals and conservatives are complimentary forces. As a Liberal, I view conservatism as a "necessary evil".
quote:
Alito helped author a Justice Department policy that "said that discrimination based on insufficient medical knowledge was not prohibited by federal laws protecting the handicapped. Employers, it said, may legally fire AIDS victims because of a 'fear of contagion whether reasonable or not.'" The Justice Department's position was rejected by many states, including some that reacted by barring discrimination against people with AIDS. Alito, whose work helped foster some of the hysteria about AIDS during the Reagan era, said, "We certainly did not want to encourage irrational discrimination," ."


Irrational discrimination??? Please give me an example of rational discrimination.

quote:
but the reaction to it "hasn't shaken our belief in the rightness of our opinion."


Is that Alito's way of saying, "So what if our opinion shocks the conscience of thinking people, this is our ruling and we're sticking with it."

After researching the topic of Alito, I respectfully withdraw my original post.

If ever there was a nominee to get Borked, Alito is surely the man.
quote:
Originally posted by MBM:
quote:
Originally posted by Vox:

It'll go without saying that it's a wrap for reparations (as if it wasn't already), because 100 years from now, future black generations will be fighting for reparations for what we'll have suffered during the Alito era.


For what it's worth, I see reparations flowing from the political process not judicial.


Obviously. But of course, it would be subject to review by the courts.

quote:


BTW - I can also see a growing liberal/progressive tide welling in America to counter this hardcore conservative one that's being jammed down our throats now. This move today could knock over the first domino that leads to a generation of liberal government - starting in 2008.


Hopefully starting in 2006, with the congressional elections. But the neo-cons don't seem to be all that restricted by the normal political process. I don't care what anybody says, these people are fascists who have the media machine and the electronic voting machines firmly under their control, not to mention the fear machine, as we will see in the next year with what'll happen in Iran and Syria. Unless something huge happens real soon, we will be living under the grip of the United States of PNAC before 2008.
quote:
Hopefully starting in 2006, with the congressional elections. But the neo-cons don't seem to be all that restricted by the normal political process. I don't care what anybody says, these people are fascists who have the media machine and the electronic voting machines firmly under their control, not to mention the fear machine, as we will see in the next year with what'll happen in Iran and Syria. Unless something huge happens real soon, we will be living under the grip of the United States of PNAC before 2008.


Good analysis, VOX. But it does seem that you've joined me in the C[onspiracy] T[heory] zone. nono
quote:
Originally posted by Kweli4Real:
quote:
Hopefully starting in 2006, with the congressional elections. But the neo-cons don't seem to be all that restricted by the normal political process. I don't care what anybody says, these people are fascists who have the media machine and the electronic voting machines firmly under their control, not to mention the fear machine, as we will see in the next year with what'll happen in Iran and Syria. Unless something huge happens real soon, we will be living under the grip of the United States of PNAC before 2008.


Good analysis, VOX. But it does seem that you've joined me in the C[onspiracy] T[heory] zone. nono


lol

Now what did you call it when the DEmocrates ruled for over fifty years and Black folks were being keepted out of the loop?
There were no fox tv, Rush, Hanity or any one else.
And Fascists is total control over the people. Oh! Wait, WE do have Fascists in our lives. Only we now call it Liberal "PC'.

lol
EVil REpublicans'
Evil voting machines
Evil COnservative media'
EVil Conservative churches'
Evil Corparations'
Evil Private schools'
Evil Black COnsrvatives'

That DAng! evil is everywhere? lol lol

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