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A wolf in sheep's clothing


We have the nomination battle we were waiting for, at least.

I am speaking, of course, of the nomination of Samuel A. Alito, currently a judge on the Third Circuit of Appeals, to the Supreme Court after Harriet Miers withdrew herself as a nominee.


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 @


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