| And it’s hard to
think of a larger contrast between two potential justices:
one without any judicial experience, whose commitment
to the far-right principles currently governing the
Republican Party was immediately called into question
by the religious right groups that are now the core
support cadre of the White House; versus one of the
most activist judges on the bench in America today,
who has years and years and scores of opinions laying
out his radical judicial philosophy that is exactly
in line with those reactionary tenets.
The problem, of course, is that Alito’s opinions,
and I’m sure his personal and professional demeanor,
are hardly the thundering-against-moderation that
his supporters like James Dobson or Rush Limbaugh
deliver so vivaciously. But that’s why his nomination
is so dangerous.
Alito is a radical judge. He espouses views
that are far beyond the conservatism of Sandra Day
O’Connor, the justice he will potentially replace—and
I want to make this clear, O’Connor is only
referred to as a “moderate” in comparison
to the rest of the Supreme Court; she herself would
have been the far right flank in plenty of past benches—and
in many ways are even to the right of Thomas or Scalia,
the most uncompromising conservative members of today’s
Court.
But he does not enter a room and begin spouting fiery
rhetoric about repressing all of our constitutional
rights—even though that is what he wants to
do. He is an intelligent man and an excellent speaker
and writer, and offers a reasonable-sounding defense
of what he would like you to believe is a principled
stand against activist judges. In fact, he himself
is the extreme activist, which is why it is so important
that he not be confirmed to the Supreme Court.
Among the issues that Alito would like to reshape
in his radical version of the law:
He would like to hold anyone alleging discrimination,
such as sexual harassment or discrimination on the
basis of gender, to an extremely high standard of
proof to be able to present their case in court—a
higher standard than even the other judges on the
Third Circuit. He is also shockingly willing to exclude
evidence while demanding that the person alleging
harassment or discrimination meet that higher standard—for
example, when a police officer in Pittsburgh complained
that her supervisor was sexually harassing her at
work, Alito found that there was insufficient evidence
that the Chief of Police had known that the supervisor
was a sexual harasser. This was after Alito refused
to allow the officer to present a report about her
supervisor that found that the same supervisor had
previously sexually harassed another officer under
his command.
Alito has been unequivocal about his refusal to give
any weight to allegations of racial discrimination
in criminal proceedings. In an appealed death penalty
case from four years ago, the African-American defendant
complained that the prosecutor systematically struck
all potential African-American jurors, resulting in
his being tried by an all-white jury. In Alito’s
first opinion on the case (writing for a three-judge
panel), he dismissed any concern for the fact that
every single potential black juror had been dismissed,
comparing it to the disproportionate number of Presidents
who have been left-handed. This offended one of his
fellow Third Circuit judges as much as it offends
me, as she pointed out in the eventual opinion for
the entire Third Circuit that equating a statistical
anomaly of an innocuous characteristic with the intersection
of race and criminal justice is a shocking dismissal
of a very serious issue that, at the least, is worthy
of consideration and discussion, not flippant analogy.
Alito has already allowed religious proselytizing
into schools. In a 2004 case, a group called “Child
Evangelism Fellowship,” that officially described
its mission as a “to evangelize boys and girls
with the Gospel of the Lord Jesus Christ,” which
was already allowed to hold “Good News Club”
meetings on a school after class hours, demanded that
the school distribute flyers to all of the students
during school time. Alito wrote an opinion requiring
that the school distribute the explicitly religious
literature, saying that if the school passed out flyers
for PTA meetings, it had to give students papers telling
them to be Christian too.
And most notoriously, Alito has no problem with requiring
a married woman by law to tell her husband if she
wants to have an abortion. As William Saletan pointed
out for Slate, Alito justified this outcome by citing
an earlier case in which the Supreme Court upheld
requiring minors to inform their parents if they wish
to have an abortion. Alito said explicitly that if
requiring a minor to tell her parents isn’t
an undue burden (and therefore constitutionally impermissible),
then requiring a wife to tell her husband isn’t
an undue burden either. I don’t know how to
put it more starkly: he wants to treat women like
children. He thinks that the analogy of husband to
wife and parent to child is, under constitutional
interpretation, a one-to-one correspondence.
It is these kinds of opinions that have sparked so
much notice and opposition from the legal community.
At my own law school—Alito’s alma mater—a
grassroots effort to unify the voices of law students
across the nation has already begun. The organizational
website Law
Students Against Alito has already begun to suggest
steps that students across the country can take to
try to make our voices heard. Like most of my fellow
students around America, I decided to go to law school
because I wanted to participate in a system of justice
that advanced human rights and made progress toward
more fairness and equality. It means something to
me that the founding document of our government states
that no person shall be deprived of the equal protection
of the law, and that the government cannot force anyone
to worship an established church. It would be a tragedy
if, just as we begin to enter the profession, the
principles that drew us to law are dismantled by an
activist, reactionary wolf in moderate sheep’s
clothing.
Dara Purvis is a weekly contributor to Raw Story,
and is also involved in Law Students Against Alito.
Visit her on the web @ www.DaraPurvis.com.
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