The nomination is over and done with, but I wanted to share a particularly interesting letter that a collegue of my dad’s wrote to Sen. Arlen Specter. I’m posting the letter with permission, but the author has requested that I not use his name. I’ve also taken out identifying information. It’s a great piece; I hope you all take the time to read it:
Dear Senator Specter:
I am a former Assistant United States Attorney and have practiced in the federal courts for over thirty years. I write now to urge that you vote against the confirmation of Judge Samuel Alito, Jr. to the United States Supreme Court. While I am certain that Judge Alito is a fine human being and has displayed competence throughout his legal career, his record, when examined objectively, is that of one who is simply too committed to an ideological agenda well out of the mainstream to be able to judge the critical issues likely to confront him as a Supreme Court Justice in an even-handed fashion.
Justice Alito’s record has properly been criticized in a variety of areas, but I would like to focus on two aspects of his philosophy that, if translated into policy by a majority of the Supreme Court, would, as I see it, be dangerous for the Republic: first, his opposition to a federally conferred right to privacy, not only in his clear disagreement with the Roe v. Wade decision, but in other areas, as well; and second, what can be predicted to be an excessive deference to the Executive Branch at the expense of Congressional and individual interests, at a time when such deference would have long term negative effects if accepted by a Majority of the Supreme Court. At this critical time in our Nation’s history we cannot afford to take a chance on an individual on a candidate with such radically conservative views.
Judge Alito Opposes A Constitutionally Conferred Right to Privacy.
First, there can be absolutely no question that Judge Alito personally opposes a woman’s right to choose an abortion and that this bias has affected his decision-making to date. Memoranda written while serving as an Assistant to the Solicitor General in 1985 reflect a deep-seated abhorrence (confirmed by his mother to the Press on the day of his nomination) to a woman’s right to seek to terminate a pregnancy, no matter how compelling the reason. In one memorandum he wrote in favor of a strategy “to advance the goals of bringing about the eventual overruling of Roe v. Wade and in the meantime mitigating its effects,” while excoriating the Supreme Court’s reasoning with the false specter of “the mindless dumping of aborted fetuses into garbage piles.” Since ascending to the Third Circuit, the Judge wrote in his dissent in Planned Parenthood v. Casey, 947 F.2d 682 (3rd Cir. 1981) that a woman’s right to make this important decision concerning her health in the privacy of the physician-patient privilege should not prevent states from requiring them to notify their spouses, except in limited cases. In rejecting this reasoning Justice O’Connor wrote for the Supreme Court that Judge Alito’s position harkened back to the days when “a woman had no legal existence separate from her husband.” Judge Alito’s opposition to Roe must be considered in light of what all agree is a well thought out and hard bitten conservative philosophy that gives short shrift to the right of privacy in other contexts. For example, in Doe v. Groody, 361 F.3d 232 (3rd Cir. 2004), his dissent would have upheld police strip-searching of a mother and a ten-year-old daughter, while executing a search warrant.
From his public statements and writings there is every reason to believe that Judge Alito falls into the “judicial fundamentalist” school of thought on privacy rights, as described by University of Chicago Law Professor Cass Sunstein in his recent book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong For America (2005). As Professor Sunstein points out, if this philosophy were ever to command a Majority of the Supreme Court, not only would Roe v. Wade be overturned, but also Griswold v. Connecticut (overturning prohibition against sale of contraceptives to married couples) and Lawrence v. Texas (overturning criminal prosecution of homosexual acts of consenting adults). However one might evaluate the merits of any specific case in the privacy arena, a wholesale repudiation of well established Supreme Court decisions would, I would argue, have highly corrosive effects on citizens’ expectations of basic personal privacy, as those expectations have been developed over the last forty years. While Judge Alito apparently has given assurances that he will defer to precedent if confirmed, his stated record and personal beliefs are so clear that the Senate might wish to give great pause before accepting these assurances at face value. For this reason alone, he should not be confirmed.
Judge Alito Would Defer Excessively to Presidential Power.
To me the likelihood that Judge Alito would defer excessively to the Executive Branch if confirmed as a Justice is an even more troubling issue than his views on privacy. Regrettably, many of the great issues likely to reach the Court in the next few years will deal with the limits of Executive Branch power. As we all know, the Bush Administration is currently, at the very least, pushing the envelope regarding its power in such areas as treatment of detainees or enemy combatants, warrantless electronic surveillance, governmental secrecy, and respect for Congress as a coordinate branch of government. Vice President Cheney lobbies Congress for a “torture exemption” for the CIA, Secretary of State Rice dodges queries about “rendition” and secret prisons in Eastern Europe, and the President defends four years of secret and unauthorized National Security Agency wiretaps under his “inherent” powers. A growing body of thought believes that President Bush’s real criteria for Supreme Court Appointees is someone who will not question Presidential authority. While, to my knowledge, Judge Alito has not written any decisions which deal explicitly with these issues, clues can be found in the written record that point toward excessive deference to the Executive Branch and an unwillingness to second guess Presidential power.
While serving as a Deputy Assistant Attorney General, Judge Alito agreed with an FBI plan to collect fingerprints cards from Iranian and Afghan refugees residing in Canada. He argued that the non-resident status of immigrants rendered the Executive Branch’s actions free from those rules against “stigmatizing” individuals that would apply within the United States. This is precisely the reasoning that the current Administration offers in support of Guantanamo Bay abuses and treatment of enemy combatants. Similar logic could be used to support secret CIA interrogations in former Eastern European Gulags, now under scrutiny by the European Union. In another memorandum from his Justice Department years, the Judge argued in favor of granting “great deference” to Executive Branch determinations of “national security” interests. He also authorized government lawyers to surreptitiously record conversations with taxpayers, dismissing what he called “this broad ban on electronic surveillance” found in a Formal Opinion of the American Bar Association. Documents released just today reveal that he favored a carefully thought out approach to shield high level government officials from damage suits arising out of illegal domestic wiretapping that took place during the Nixon Administration. In a 1989 debate sponsored by the Federalist Society, the Judge sharply criticized a 7 to 1 United States Supreme Court decision upholding the Independent Counsel Act, characterizing it as “congressional pilfering of presidential power.” He described Justice Scalia’s dissent in that case as “brilliant, but lonely.” Cumulatively, these writings portray an individual loathe to second guess the President and quick to defend governmental spying on our citizenry. On this record alone the Senate may properly ask: how objective would Judge Alito be if comparable and more current issues relating to the use, or abuse, of Presidential power in electronic surveillance and national security matters were presented to him on the Supreme Court?
Judge Alito’s writings on the Third Circuit continue to reflect a pervasive bias in favor of the Executive Branch. He construes prisoners’ rights and constitutional freedoms associated with the defense of accused persons extremely narrowly. A New Jersey defense lawyer who has known Judge Alito since 1981 describes him as “very prosecutorial from the bench. He has looked to be creative in his conservatism…” A study of his opinions by a Yale Law School Student Project finds that “even when he finds that a defendant’s rights have been violated he consistently declines to provide a remedy. As a result he has ruled for the government in almost every case reviewed.” In immigration cases he is quick to defer to INS determinations at the expense of individuals, even when those determinations are not supported by the evidence. Twice he dissented from decisions which overturned INS dismissals of refugee claims, on behalf of individuals who rightfully feared persecution in their native countries (China and Republic of Guinea). Chang v. INS, 119 F.3d 1055 (3rd Cir. 1997); Dia v. Ashcroft, 353 F.3d 228 (3rd Cir. 2003). In Dia the majority opinion noted that Alito’s reasoning “gut[ted] the statutory standard” and “ignore[d] precedent.”
It is no exaggeration to say that measured, yet firm and transparent oversight of the Executive by an impartial federal judiciary is one of the linchpins of our Rule of Law, going all the way back to the seminal case of Marbury v. Madison. Even under the wartime pressures of what Mr. Justice Black so eloquently called “foreign shot and shell” in the Pentagon Papers case, the Supreme Court has not hesitated to strike down Presidential usurpation of power, as the decisions in Youngstown Sheet and Tube v. Sawyer (seizure of steel mills during the Korean War) and United States v. Nixon (Nixon tapes case) so aptly illustrate. There is simply no reason to believe that a jurist with such an unwavering record of deferring at all costs to Executive authority would have the inclination to treat alleged abuses of that authority with the needed objectivity, were these issues to be presented to him as a Supreme Court Justice.
Judge Alito Is Likely to Embrace a Judicial Fundamentalist Agenda.
Professor Sunstein’s recent book Radicals in Robes describes in vivid terms how what he calls “judicial fundamentalists” are trying to take over the federal courts. One of the agenda items of the fundamentalist school is to roll back the power of Congress to utilize the Interstate Commerce clause to regulate in areas which it would like to see unregulated. Judge Alito embraced this position in a dissenting opinion United States v. Rybar, 103 F. 2d 273 (3rd Cir. 1996) a decision which dealt with Congress’s authority to regulate possession of machine guns. The Judge wrote that there was “no appreciable empirical support for the proposition that the purely intrastate possession of machine guns, by facilitating the commission of certain crimes, has a substantial effect on interstate commerce,” a view which the Court majority characterized as “show and tell.” While Rybar is only one decision, Judge Alito’s approach in that case, considered in light of his writings and decisions taken as a whole, puts him squarely within the judicial fundamentalist agenda described by Professor Sunstein and others. If the Supreme Court were to adopt the philosophy behind Judge Alito’s dissent in Rybar, Congress’s ability to regulate under the authority of the Commerce Clause in areas to which the judicial fundamentalists object, such as gun control, the environment or workplace safety, to name but three examples, will be in jeopardy.
Whether Judge Alito is a “judicial fundamentalist” or merely highly conservative, his confirmation would likely cement a plurality on the Court (Chief Justice Roberts, Justices Scalia, Thomas, and Alito) that is, without any doubt, committed to a judicial philosophy well outside the mainstream of current American society most judicial thought. It is no coincidence that many of Judge Alito’s supporters are so pleased at his nomination, just as they were displeased with the President’s selection of Harriet Miers before then. They know his true stripes.
In urging that you vote against Judge Alito’s confirmation to the Supreme Court, I recognize that I could be proven wrong. Court history is filled with examples of men and women who grew into the position, who were able to shed prior assumptions or beliefs and became fine Supreme Court Justices. Justices Black, Blackmun and O’Connor come to mind. But a fair and reasonable reading of Judge Alito’s record is of an individual who has been radically conservative throughout his entire career, one whose commitment to a consistent ideological agenda outweighs his objectivity, in spite of the seemingly measured tone of his decisions. Moreover, there is no reason to believe that the Judge’s personal makeup would transcend ideology and deference to governmental power if he is confirmed as a Justice. This is a Judge who once granted the extraordinary remedy of a Writ of Mandamus for an asbestos company based upon its First Amendment associational rights, In re Asbestos School Litigation, 46 F.3d 1284 (3rd Cir. 1994), yet in Dia had no difficulty dismissing, as incredible, an immigrant’s asylum claim based on evidence that the petitioner’s house had been burned to the ground and his wife raped in his native Guinea village. Regrettably, Samuel Alito Jr. is a man who instinctually favors the interests of the entrenched and powerful over the less fortunate or helpless.
At this time in our history we cannot afford to take a chance that a Jurist of Judge Alito’s judicial philosophy, temperament and deep seated personal predilections will change. He is not part of the traditional and more thoughtfully metered conservative philosophy exemplified by, for example, Mr. Justice Harlan. Rather, he is a “radical,” as that term has been defined by Professor Sunstein, and as revealed in his written record.
Because I believe that Judge Alito’s ideology and approach would do grave damage to the structure and balance of our government if adopted by a majority of the Supreme Court – particularly in the areas of privacy protections and Executive Branch power – I urge you, the other members of the Senate Judiciary Committee and your colleagues in the Senate to vote against his confirmation.
Thank you for your consideration of this letter.