Alito the Hun

The don’t call Judge Samuel Alito “Scalito” (meaning “Little Scalia”) for nothing. In fact, it’s hard to imagine a more reactionary judge than Bush’s new nominee for the Supreme Court.

Theocratic pit bull Gary Bauer, the dwarf former presidential candidate of the Christer hard right, crowed that the appointment of Alito was “a grand slam,” and crackpot antediluvian Phyllis Schlafly — who called Bush’s corporate flunky Harriet Miers a dangerous “feminist,” of all things — likewise gave her enthusiastic blessing to the “terribly impressive” Alito. In fact, there’s no question that the Alito appointment was dictated by the ultraconservatives: Karl Rove went out of his way to personally call a gaggle of them — like the Southern Baptist Convention’s chief judicial enforcer, Richard Land — to boast that they’d be satisfied with Alito, the Moonie Washington Times (the Bush White House’s favorite daily) reported.

“There are a number of cases on which we know that he’s to the right of where the Supreme Court currently stands, and the way we know that is that the Supreme Court and he disagreed about a legal issue,” Pam Karlan, a professor of public-interest law at the Stanford Law School, told the NewsHour With Jim Lehrer, citing abortion, the Constitution‘s equal-protection clause and the rights of those accused of crimes. And a profile in the National Law Journal of the court of appeals on which Alito sits called him “much more of an ideologue than most of his colleagues.”

That Alito would gut Roe v. Wade is clear from his 1991 decision in a case brought by Planned Parenthood, in which he argued that a Pennsylvania law requiring women to notify their spouses before having an abortion was constitutional, a big issue for battered women. The Supreme Court later struck down this legalized form of slavery, arguing that “Women do not lose their constitutionally protected liberty when they marry.”

Alito doesn’t have much use for the Bill of Rights’ Fourth Amendment, guaranteeing freedom from unwarranted searches and seizures and fair trials. For example, he argued that police had a right to strip-search a 10-year-old girl (and her mother) while carrying out a search warrant that only authorized the search of a man and his home (Doe v. Groody, 2004). Did I hear someone say “Gestapo tactics”?

Alito doesn’t think Congress has a lot of power, and would shrink the federal government’s ability to protect its citizens. For example, Congress doesn’t have the right to prohibit the transfer or possession of machine guns under the Constitution, Alito declared as the lone dissenter to a conviction of a violator of federal gun laws (U.S. v. Rybar, 1996). He argued that Congress didn’t have the power to pass the Family Medical Leave Act — which guarantees 12 weeks of unpaid leave to care for a loved one — and said that state employees therefore had no right to sue for damages to enforce their rights under the act (Chittister v. Department of Community and Economic Development, 2000). Alito’s heartless view was effectively reversed by a Supreme Court decision three years later.

In a homophobic decision aimed at striking down protection of gay kids in public schools, Alito held that prohibiting harassment against students because of their sexual orientation or other characteristics was unconstitutional — in a case involving a disabled kid who was the target of nasty anti-gay epithets (Saxe v. State, 2001). Although the school’s policy focused only on harassment that had the purpose or effect of interfering with a student’s educational performance, or that created an intimidating or hostile environment that prevented study, Alito’s opinion dismissed the vicious verbal gay bashing of the disabled kid as “simple acts of teasing.”

Civil rights? Fuhgeddaboutit, Alito has said in a raft of dissents to 3rd Circuit decisions — like Bray v. Marriott Hotels (1997) in which a majority of Alito’s court colleagues lectured him for trying to impose an almost impossible burden of proof on victims of employment discrimination by “immunizing an employer from the reach of Title VII [of the Civil Rights Act] if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias.” In several other issents, Alito wanted to make it harder for victims of discrimination based on disability and gender to prove their case. The court’s majority in Nathanson v. Medical College of Pennsylvania (1991) explained that under Alito’s restrictive standard for proving disability discrimination, “few if any Rehabilitation Act cases would survive summary judgement.”

And Bush’s new, prospective Supreme Court justice is pretty hostile to immigrants — as in his dissent from a ruling that an immigration judge should reconsider a claim from an immigrant that he’d be persecuted if returned to his home country. A majority of Alito’s colleagues in the 2003 case Dia v. Ashcroft criticized Alito for his dissent that would effectively “gut the statutory standard” for evidence of danger to the immigrant and that “ignores our precedent.”

There’s tons more like this in Alito’s judicial past — and the profile of Alito in Aspen Publishing’s Almanac of the Federal Judiciary reports that his opinions, though scholarly, are “very, very conservative . . . he plants language [in his decisions] that moves the law further to the right.”

At the age of 55, Alito is young enough to stay on the Supreme Court for decades. If the Democrats don’t filibuster the nomination of this archreactionary, “Scalito” will help guarantee a Scalia-like court majority for a long, long time. But will “Holy Joe” Lieberman, and the other right-wing Senate Dems who engineered the sellout compromise on judicial confirmations that avoided the so-called “nuclear option,” throw in the towel, vote to short-circuit any filibuster, and cave in to the Bush-Rove Republicans on Alito? If they do, you can kiss a lot of your rights and liberties goodbye — permanently.

Doug Ireland can be reached through his blog, DIRELAND, at

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