On Alito’s Nomination


Judge Samuel Alito is the second qualified person George W. Bush has nominated to the Supreme Court this year. He is experienced, articulate, and by all accounts an outstanding lawyer. Media reports are filled with stories of his modesty, his seriousness, his neutrality. He has impressed Senators in closed-door meetings. That Alito is a good man and a qualified attorney, is enough, we are told, to support his nomination. But Judge Alito’s record as a judge, and the emerging picture of him as an advocate, do more to explain the right’s enthusiastic support and indicate that progressives ought to oppose him.

That Alito is conservative is unsurprising. No one can be shocked that Bush appointed a fellow traveler, and many would say that as President, that is his prerogative. What is surprising is just how conservative Alito may be. Nicknamed “Scalito,” he has moved to restrict the power of the federal government to regulate firearms, to restrict citizen access to suits under the Clean Water Act, and to roll back portions of the Family and Medical Leave Act. In a job application he proclaimed both his opposition to the Warren Court’s reapportionment decisions guaranteeing equal voting rights and his belief that the Constitution does not protect a woman’s right to choose.

Equally disturbing is Judge Alito’s singular willingness to ignore or obfuscate the social context in which his decisions are made. In one employment discrimination case, he voted to impose a stiffer standard for summary judgment because liberal procedural rules would allow “disgruntled employees to impose the costs of trial on employers.” In Planned Parenthood v. Casey, he wanted to up hold a requirement that women seeking an abortion get spousal consent, dismissing, with little explanation, the risk that some women might face abuse at the hands of their husbands. Similarly, in a death penalty appeal, Alito asserted that the exclusion of black jurors was a purely statistical phenomenon, comparable to the predilection of the American public to elect left-handed Presidents. To him, the claim that prosecutors might discriminate against jurors on the basis of race was as absurd as the claim that Americans preferred to be governed by the left-handed. These decisions – that employment discrimination is a way employees impose costs on employers, that a beating is not an undue burden, that all white juries are a mere statistical phenomenon – reflect an account of social life that is deeply troubling. A judge on the Supreme Court should not be blind to the ways that facially neutral rules affect different populations differently, but instead sensitive to the realities of social life.

To be fair, much of what Alito will do on the Supreme Court is unclear. He may not vote to overturn Roe or roll-back the power of the federal government as many fear. But he will shape the Court for the foreseeable future, not least of all by replacing O’Connor’s swing vote with a near-sure thing for the right. Even if he refrains from delivering devastating blows to the decisions that protect our civil rights, our privacy, and our environment, he will do much to whittle them away.

Law students have a role to play in the upcoming nomination battle. Law students can and should speak out against Judge Alito’s nomination, telling their congress members, senators, and local papers that they, the young lawyers of America, oppose Judge Alito. Anyone interested in working to defeat Judge Alito’s nomination should come to the meeting of the newly formed Law Students Against Alito, tonight, December 1, in Areeda 120. America can, and should, do better.

Matt Macdonald is a 2L who is pretty sure the Constitution says you have to do whatever the President wants. Elizabeth Dodson, also a 2L, aspires to be a powerful woman, and is currently accepting applications for an unusually pliant yes-man.

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