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SPECIAL The Record and Legal Philosophy of Samuel Alito: "No One to the Right of Sam Alito on this Court" REPORT January 2006 Ralph G. Neas, President, People For the American Way 2000 M Street NW, Suite 400 ❚ Washington DC 20036 ❚ 202/467-4999 www.pfaw.org Table of Contents Executive Summary 3 I. Introduction 7 II. Congressional and Executive Authority 14 A. Congress’ Authority to Protect Americans’ “Health Safety and Welfare” 14 B. Presidential and Executive Authority 20 III. Discrimination and Civil Rights 26 A. Judge Alito’s Pre-Judicial Record at the Justice Department 26 B. Judge Alito’s Membership in Concerned Alumni of Princeton and his Memory Gap 31 C. Judge Alito’s Judicial Record in Discrimination Cases 40 D. Judge Alito’s Record on Immigration 46 IV. Reproductive Freedom 55 V. Police Power and Individual Rights 65 A. Judge Alito’s Pre-Judicial Record 66 B. Judge Alito’s Judicial Record 70 VI. Environmental Protection 97 A. Limiting Congress’ Authority to Enact Environmental Legislation 98 B. Second-Guessing Scientific Findings and Judgments of the EPA 99 C. Limiting Individual Enforcement of Environmental Laws in Federal Court 102 D. Other Environmental Decisions 104 VII. Corporate Power and Individual Rights 107 A. Worker Protection 108 B. Other Corporate Issues 115 1 VIII. The First Amendment 119 A. The Establishment Clause 120 B. Free Exercise and Free Expression of Religious Belief 129 C. Freedom of Speech 134 IX. Judge Alito’s Troubling Credibility Gap 139 X. Conclusion 147 Appendix A – Judge Samuel Alito’s Record of Dissents on the Third Circuit 148 Appendix B – Judge Alito’s Record in Divided Civil Rights Cases 152 2 Executive Summary If confirmed as the next Associate Justice, Judge Samuel A. Alito would bring dramatic, sweeping change to the Supreme Court. While his words are carefully chosen and his demeanor is measured, Judge Alito’s ultraconservative judicial philosophy is nothing short of radical. He would join Justices Clarence Thomas and Antonin Scalia at the center of a radical right-wing bloc that would change the direction of the Court and the country for decades to come, and threaten fundamental rights and legal protections. He stands in sharp contrast to the justice he would replace: Sandra Day O’Connor, a mainstream conservative whose swing vote has helped to preserve hard-won progress on civil rights, reproductive freedom, environmental protections, and a host of other issues preserving equality and justice for every American. The White House has tried to distance Judge Alito from his lengthy record, which demonstrates he is among the most extreme members of the federal bench. His nomination has been unanimously acclaimed by the leaders of the Radical Right. He has shown a pronounced willingness to impose a narrow right-wing ideology from the bench, and compiled an extraordinary record of dissents to mainstream opinions -- indeed, the largest number of dissents on the Court of Appeals on which he currently sits. This report analyzes Judge Alito’s public record, drawing a disturbing thread from the legal views he advanced while serving in the Reagan Department of Justice to his fifteen years on the Third Circuit Court of Appeals. It makes a resounding case for rejection of his nomination by the United States Senate in the exercise of its constitutional advice and consent duty. Increasing Presidential Powers Throughout his career, Judge Alito has shown a strong predilection to concentrate power in the executive branch and the President, eroding governmental checks and balances and diminishing the rights of private citizens. His record is especially troubling at a time when one party controls all three branches of government and allegations of abuse of 3 power abound -- from warrantless wiretapping of American citizens to the unlawful detention and torture of suspects held by the government at home and overseas. Eroding Civil Rights As a government lawyer and a federal judge, Judge Alito has consistently failed to protect civil rights. He has said he disagrees with historic Supreme Court decisions articulating the “one person – one vote” principle. As a judge, he has rarely sided with individuals seeking relief from discrimination on the basis of race, age, gender, or disability, and he has opposed efforts to redress the historic effects of discrimination in the workplace. Indeed, in civil rights cases where the Third Circuit was divided, Alito advocated positions detrimental to civil rights 85 percent of the time. He once argued that it was permissible to seat an all-white jury in a case in which the evidence indicated that prosecutors had rejected black jurors on the basis of race. As part of a 1985 application for promotion in the Justice Department, he highlighted his membership in a reactionary Princeton alumni group that opposed the admission of women and attempts by the university to increase minority enrollment. Ending Reproductive Freedom Judge Alito has written that the Constitution does not guarantee a right to an abortion. He is on record opposing Roe v. Wade, and endorsing state laws so burdensome they effectively deprive women of their right to privacy, reproductive freedom, and reproductive health. There is little doubt that as a Supreme Court justice, Alito would vote to overturn Roe. Favoring the Powerful over the Powerless More than his colleagues on the Third Circuit, Judge Alito has sided with corporations and government entities accused of discrimination. Several analyses of his record by academics and the news media indicate that he consistently sides with powerful entities against individuals. He once wrote that high government officials should be absolutely immune from liability in cases involving the illegal wiretapping of U.S. citizens. And he 4 endorses broad powers for law enforcement, once writing a dissent that would have upheld the strip search of a ten-year-old girl who was not named in the search warrant. Curtailing Congress’ Power to Protect Citizens Judge Alito has voted to strike down Congressional legislation banning the possession and transfer of machine guns, and legislation requiring that states fully comply with obligations to give their workers unpaid medical leave. He once wrote that it is not the role of the federal government to protect the “health, safety and welfare” of the American people. This ultraconservative ideology would undermine an enormous range of laws Americans rely on, including civil rights protections, health and safety standards in the workplace, regulations protecting air and water quality, food and drug quality standards, the regulation of firearms, and even the Social Security, Medicare and Medicaid programs. Threatening Religious Liberty Judge Alito’s nomination threatens to erode fundamental constitutional protections that ensure that all Americans continue to enjoy freedom of conscience and religious liberty. Alito has consistently ruled against those who believe that taxpayer funds should not be used to promote religion, and he has reportedly told Senators that the Supreme Court has gone “too far” in maintaining the separation of church and state. A Growing Credibility Gap There have been disturbing inconsistencies in Judge Alito’s explanations of controversial issues. He pledged to Congress that he would recuse himself from cases involving certain companies and firms -- including the Vanguard companies, the brokerage firm of Smith Barney, and his sister’s law firm -- then broke that pledge, in one case offering several different excuses. He claims not to remember his membership in the reactionary “Concerned Alumni of Princeton,” although he prominently highlighted that involvement in a 1985 application for a promotion. He reportedly said his statement in that same application “that the Constitution does not protect a right to an abortion” was made to get the job and should not be taken seriously. 5 Conclusion Judge Alito’s quiet demeanor cloaks a far right ideology that places him among the most conservative judges on the federal bench. If he replaces Justice O’Connor, he would be a consistent vote to turn back the clock on decades of progress in civil rights, civil liberties, health and safety, environmental protection and religious liberty. His extreme judicial philosophy threatens fundamental rights and legal protections for all Americans -- for decades to come. The Senate should reject his confirmation to a lifetime seat on the Supreme Court. 6 I. Introduction: The Record and Legal Philosophy of Samuel Alito: “No One to the Right of Sam Alito on this Court” When President Bush nominated Judge Samuel Alito to replace Justice Sandra Day O’Connor immediately after the far right forced the withdrawal of Harriet Miers, far right leaders were immediately and unanimously enthusiastic. Robert Bork concluded “let us rejoice.”1 Concerned Women for America pronounced that Alito “has always been one of our top choices.”2 Disgraced former Republican Senate staffer Manny Miranda called the selection a “grand slam,” 3 and columnist Cal Thomas reported that right-wing advocates who had opposed Miers were now “ecstatic.”4 Operation Rescue proclaimed that as a result of the nomination, “Roe’s days are numbered.”5 Jay Sekulow of the American Center for Law and Justice echoed the views of many by crowing that “President Bush promised that he would nominate Justices in the mold of Justices Scalia and Thomas. President Bush has done just that.”6 Indeed, prior to Alito’s nomination, one report noted that the “Scalito” nickname for Alito “appears to have caught on even among some conservatives who appear to use it as a compliment.”7 Alito supporters and White House spinners nonetheless claim that he is not like Justice Scalia -- he is mild-mannered, polite, and does not write bombastic opinions. But this confuses style with substance. As concluded by George Washington law professor Jonathan Turley, who supported John Roberts’ confirmation as Chief Justice, if Alito 1 R.

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