Way: Supreme Court loses its swing - by Donnie Dobovich
Miers, finally offered up as a sacrificial virgin to the fire-breathing right,
has gone up in smoke. The president weathered a disastrous week with aplomb,
hurdling Miers’ smoldering husk, as well as the corpses of the 2,000th
American casualty in Iraq and “Scooter” Libby. Never one to let the sore of
individual freedoms fester, Bush quickly nominated Third Circuit Court of
Appeals judge Samuel Alito to fill Sandra Day O’Connor’s seat on the US Supreme
has what Miers so obviously lacked: judicial pedigree. Meaning he’ll actually
get a hearing. It, too, promises to be incendiary, but this time it’s the
American people and maybe the racier parts of the constitution that stand
to get burned. According to People for the American Way, after graduating
from Yale Law School in 1975, he served as a law clerk on the Third Circuit.
He went on to serve as Assistant US Attorney for the District of New Jersey
and later joined the Reagan Justice Department. Thereafter, he held posts
as an Assistant to the US Solicitor General, Deputy Assistant US Attorney
General and US Attorney for the District of New Jersey. His reign of caprice
and terror as an appeals judge began following his nomination in 1990 by President
George H.W. Bush.
was one of three judges to hear a landmark case, Planned Parenthood of
Southeastern Pennsylvania v. Case, in which the Third Circuit upheld all
but one provision of an especially prohibitive state law regarding abortions.
The court ruled that maintaining a 24-hour waiting period, requiring minors
to obtain parental consent or a judicial bypass, and reporting requirements
for abortion clinics and public disclosure of those reports was not unduly
burdensome to women seeking an abortion.
court struck down a provision requiring women to inform their spouses of their
decision to seek an abortion except in rare circumstances. But Alito penned
a dissenting opinion in favor of the stricken clause, arguing its opponents
“failed to show even roughly how many of the women in this small group would
actually be adversely affected,” as if a relatively small number were acceptable.
He argued in furtherance of a father’s right to the fetus carried by his wife.
One legal observer summarized the effect of the court’s decision thusly: “[F]or
the first time since 1973, a Federal court of appeals has directly said that
Roe v. Wade is no longer the law of the land.”
US Supreme Court affirmed most of the Third Circuit opinion. More important
Alito’s extreme interpretation found sympathy, perhaps presciently, among
the most conservative justices, including Antonin Scalia. This shared judicial
philosophy expressed in Alito’s opinions has earned him the nickname “Scalito”
among attorneys who have argued before the Third Circuit. That moniker, although
a seemingly reasonable portmanteau of “Scalia” and “Alito,” has been characterized
by Republican strategists as an ethnic slur. Personally, we feel it has more
of a Latino flavor. A similarly disingenuous accusation is that those who
would call Alito a fascist do so out of a bigoted reference to Mussolini,
as if Italy was the European nation people think of first when they hear that
word. Nevertheless, many have been quick to defend the nominee from perceived
slights, even though Alito himself has been loath to defend anybody from almost
any form of bigotry.
dissenting opinions, and his particularly unsympathetic attitude toward women
and minority plaintiffs, stand out on a court already noted for its jurisprudential
the discrimination case Glass v. Philadelphia Electric Company, Alito
disagreed with the majority. He authored a decision arguing, incredibly, that
allowing the plaintiff to rebut accusations of poor work performance by demonstrating
he was a victim of racial discrimination would constitute “substantial unfair
prejudice.” Isn’t that what trials and juries are for?
with the majority in another case, Alito anticipated a proliferation
of illegitimate anti-discrimination actions. He wrote ominously
that “What we end up doing…is converting anti-discrimination
law into a ‘conditions of employment’ law…allowing
disgruntled employees to impose the costs of trial on employers
who, although they have not acted with the intent to discriminate,
may have treated their employees unfairly.” This,
he said, is “an unwarranted extension of the anti-discrimination
to his credit, has taken a stand in favor of time-honored traditions. In Riley
v. Taylor, for example, he argued in favor of the rights of all-white
juries to judge their duskier peers. Riley, a black defendant, had been convicted
and sentenced to death following a trial in which all potential black jurors
were eliminated by peremptory challenges. On rehearing, the Third Circuit
reversed Alito’s initial majority ruling against Riley. Alito’s distress at
this concession to fair trial fanatics and affront to white pride was palpable.
Alito contended, “statistical evidence [demonstrating the habitual exclusion]
of black jurors from juries in capital cases was comparable to an analysis
attempting to explain why a disproportionate number of recent U.S Presidents
have been left-handed.”
pearls of wisdom like that to his credit, Alito should be thankful “acid test”
is only a turn of phrase.
Alito is confirmed, as is probable, it will be the end of Roe v. Wade, and
the beginning of the end for civil rights and industry regulation. There will
be no ‘swing vote’ left, simply a strong 5-4 majority of religious, business-friendly
conservatives. What it won’t be is the end of the recently invented, but widely
dreaded, scourge of “activist judges.” In fact, according to a July New
York Times report that measured “judicial activism” by the number of times
a justice struck down laws as unconstitutional—“legislating from the bench”
as it were—the five conservative Supreme Court justices (including Rehnquist)
top the list, with Thomas at #1 and Scalia third, while the four liberals
come in last, ending with Ginsburg and Breyer.
course, this doesn’t matter to conservatives, because all this talk of activists
and “originalists” is just code for what they can’t say, but hold in their
hearts: that this is a war between atheist commies and decent god-fearing
patriots. The constitution, what with its annoying checks and balances, is
the last thing on their minds.