Tuesday, November 08, 2005

'Scalito' Even Worse Than His Namesake

November 8, 2005

Apparently I’m not the only one who thought Miers was set up to fail. (Bush Regime Nominates Stealth Candidate, October 11, 2005; Losing Miers' Religion, October 18, 2005) Now that she actually has, half the press seems to agree that everyone knew she wasn’t the “real” candidate all along. Makes me wonder why they didn’t say so at the time. Why did the Bushies do it? Not only can they now claim to have at least tried to replace O’Connor with another woman, they have an excellent position from which to argue the immateriality of ideology. “Look, our own party went nuts when we tried to nominate a moderate. Hell, the Democratic minority leader endorsed her! Now when we nominate someone who is both competent and will please our base, you cry foul on ideology? This is an impossible position! You know, we think you dirty Democrats just don’t want a new Supreme Court Justice at all. Poor, poor Justice O’Connor, who wants nothing more than to retire from the court and spend some quality time with her ailing husband, is being forced to decide case after case because you rats are holding up the nomination process!”

It’s a good line of patter. Don’t buy it for a minute.

Miers also made the newest pick look impeccably qualified. And to be fair, that wasn’t necessary; Alito is definitely no slouch. Princeton undergrad, Yale law school, and straight into a clerkship with a federal judge on the Third Circuit. He was appointed to that circuit himself by Bush Sr. fifteen years ago, and he has amassed such a conservative record that he’s actually nicknamed “Scalito.” (I bet he hates that.) The reality, though, is that he breaks with conservative tradition even less often than Scalia, who actually has quite the respectable libertarian streak.

The real public fireball here is Alito’s dissent in Planned Parenthood v. Casey, a case in which the court was asked to rule on the constitutionality of a Pennsylvania statute placing certain restrictions on abortion. The court, 2-1, ruled that none of the provisions imposed an “undue burden” except for one requiring a woman to notify her spouse. The dissenter was Alito, and on reading his opinion, he actually sounds sensible.

First, the woman is only required to notify her husband, not seek his permission. This is not a regulation making it impossible to get an abortion if ones spouse does not agree to it. Second, the major objections to this law centered around the implications for victims of domestic violence. Battered women who seek abortions may well suffer violent repercussions if their husbands are notified that they are doing so, but Alito points out that the law specifically exempts those who fear they may suffer physical harm as a result of giving notice. The law also exempted women who were pregnant as a result of spousal sexual assault, those who could not find their husbands to notify them, and, significantly, those who believe that their husbands are not the father of the fetus they intend to abort.

This seems to make pretty good sense until you look at the ideology underlying these arguments. The implication here is that abortion, if not murder, is at least morally suspect. Alito’s belief that an abortion is something more than a health decision on the part of the woman in question is a right-to-lifer position, a curtailment of individual liberty.

Indeed, his concern for individual rights in general seems to be pretty much nonexistent. In his dissent from one 2004 case, Alito said that there was nothing wrong with strip-searching a ten-year-old girl on the basis of a warrant issued only for her father, who was the subject of a long-term narcotics investigation, and those of his “business” associates who were present at the time of the raid. One of the two judges voting against him was current head of Homeland Security Michael Chertoff, a man not exactly known for his libertarian leanings. No Supreme Court Justice’s rulings are this draconian.

Alito becomes much more concerned for civil liberties, however, when it comes to expression of religion. He distinguished a case in which two Muslim police officers claimed a religious underpinning for keeping their beards from a Supreme Court case barring Native Americans from using peyote for even religious reasons. Many expected the peyote case to be controlling precedent, but Alito managed to wriggle around it by pointing out that the police department allowed exceptions to the beard rule for medical reasons and so should allow a religious exemption as well.

Alito’s record on the separation of church and state, on the other hand, is less than stellar, to put it charitably. In the 1999 case ACLU-NJ v. Schundler, a district court declared a publicly-funded Christmas display featuring a nativity scene, a menorah, and a Christmas tree unconstitutional and ordered the display suitably removed. The city appealed and, while the appeal was pending, added Santa, Frosty the Snowman, Kwanzaa decorations, and a sign saying that the purpose of the scene was to celebrate cultural diversity. The appellate court didn’t buy it. The three judge panel affirmed the lower court’s decision that the first display unconstitutional and remanded the issue of the second display back to the district with a statement of strong skepticism. The district followed the appellate court’s lead and held the second display unconstitutional also.

When the city appealed the matter of the second display, however, the panel included Alito. In a stunning display of insouciance, Alito took the exceedingly rare measure of contradicting a ruling by a panel on the same circuit; the court upheld the constitutionality of the new display 2-1. In the opinion of the court, Alito argued that the court’s skepticism in the previous case was mere dicta, advice which does not constitute legal precedent. The dissenter Judge Nygaard, who sat on both the first panel and Alito’s panel, wrote a pissed off opinion accusing Alito of improperly weighing the previous decision.

Alito also upheld a preliminary injunction allowing the Child Evangelism Fellowship, a group describing their mission as “evangeliz[ing] boys and girls with the gospel” and “discipl[ing] them in the word of god and in a local church,” to distribute literature to students in a public elementary school during school hours. Alito argued that since such groups as 4-H and the PTA were allowed to distribute material, preventing this unabashed proselytizing somehow constituted viewpoint discrimination. This is a direct and blatant violation of the First Amendment.

The problem with using these cases to predict what Alito will do in the future is that lower court judges are restricted by precedent from higher courts. Sitting on the 3rd Circuit Court of Appeals, Alito was bound by the decisions of the Supreme Court—and nothing else. It is considered the mark of a bad judge to be overruled by higher courts, but even so, Alito was overruled following an opinion in which he upheld the sentence of an inmate who was given incompetent counsel. If he is placed on the Supreme Court, nothing will stop him from radically enforcing his own far-right views.

When the Neo-Conservatives try to portray Alito as a mainstream conservative, don’t listen. He’s even more radical than Scalia, and when there is no higher authority waiting in the wings to put him in his place, he won’t have to delicately dance around prior decisions. He can do some of his own overruling for a change.


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