1-09-06, 8:54 am
Right-wing ideologues charge that the federal judiciary is a haven of activist judges that legislate from the bench. They use this smear to attack a corps of judges – most of whom are honest – that upholds constitutional principles and legal precedents that protect civil rights, voting rights, privacy rights, and other traditional core values.
This smear campaign is part of a well-developed strategy to deceive the public into supporting a destructive shift from judicial deliberation and legal protections to a right-wing judicial bias fueled by an ideology that opposes civil rights, protections from government abuse of power (such as warrantless search and seizure), and insists that the Christian fundamentalist religious views of a small part of the population should permeate the courts and every public institution.
Supreme Court nominee Samuel Alito is a point man for this movement. He has been promoted by the ideologues of the right, fundamentalist Christian organizations, and the Republican Party machine ever since he announced his focused and determined intention to fight the right of privacy and reproductive choices for women enshrined in the Constitution. He has consistently sided with corporations and against working people on issues of wages, safety, racial and gender discrimination, and the right to organize effective unions that represent the interest of workers.
Although Alito has disingenuously downplayed his past, his record is worth examining in order to determine his eligibility for the high court. In the 1980s, when applying for work as a Reagan administration lawyer, Alito bragged about his membership in an exclusive organization known as Concerned Alumni of Princeton, which among other extremist positions was known for its hostility towards women and the notion of racial integration. Specifically, at its founding a few years earlier, the organization expressed anger that the university was now admitting women to the university.
While serving on the Third Circuit Court of Appeals, Alito offered a dissenting opinion in the case of Sheridan v. E.I. DuPont de Nemours and Company that urged overturning a jury verdict which found that the company had discriminated against the female plaintiff. According to an analysis of the opinion by the National Women's Law Center, 'Alito ignored applicable legal standards to urge overturning the jury verdict, inappropriately credited the employer's explanations for its actions, and, standing in for the jury, dismissed the value of the plaintiff's evidence undermining the employer's assertions.' Meanwhile, the other 10 members of the court voted to uphold the verdict and decided that indeed the plaintiff had met legal standards for proving discrimination.
In at least three cases of sexual harassment involving female students, Alito rejected the claims of the students and adopted a narrow interpretation of the Constitution. In these instances, Alito followed his ideological predisposition to weaken federal protections for civil rights and protections as they relate to women. When it comes down to it, Alito's narrow interpretation of the Constitution in this manner means he thinks that just about any form of gender discrimination and sexual harassment is legal – just another part of the work day for women.
Alito's apparent personal views on race also seem to have directly influenced his deliberations and judicial opinions on matters of civil rights that relate to race. For example, Alito expressed open hostility to affirmative action policies, interpretations of the Constitution that require equal representation, and provisions of the Voting Rights Act that established the principle of 'one person, one vote.' Alito has worked to overturn several decades of legal precedents and rulings that upheld constitutional protections for racial equality.
Additionally, in a way parallel to his opinions on gender discrimination, Alito has fought to create an impossible standard of proof for cases of racial discrimination, in order to eliminate legal protections against it. In Bray v. Mariott Hotels, Alito offered a minority opinion that was criticized as an attempt to 'immunize' employers from constitutional prohibitions of job discrimination based on race. The plaintiff sued her employer for failing to offer her promotions because of her race. Alito sided with the employer in a way that tried to weaken protections from abusive and unfair treatment.
In a case related to racial discrimination on juries, Alito essentially rejected the use of statistical evidence as an aid in determining whether prosecutors used racially motivated peremptory strikes to remove African Americans from a jury. His weak explanation caused the majority on the court to criticize him for 'minimiz[ing] the history of discrimination against potential black jurors and black defendants.'
Alito's record of opinions shows that he favors weakening 4th Amendment protections from unreasonable search and seizure, including a case where Alito supported the strip search of a 10-year old girl by police even though the girl was not named as a target of search in a warrant.
The matter of unreasonable search and seizure, incidentally, is gaining major attention in the news with sharp criticism of President Bush's authorization of illegal wiretaps by the National Security Agency without warrants on American telephone users since 2002. While the illegal wiretapping may lead to severe recriminations against the administration, Alito's placement on the high court would likely help the Bush administration if lawsuits related to the matter reach that level.
From his perspective, Bush's choice of Alito makes sense for practical purposes. Bush knew for more than a year that the illegal wiretapping was going to be made public, so why not appoint someone to the court who would be in a position to protect the president from legal actions in the future? (This perhaps explains his previous abortive attempt to seat his personal lawyer, Harriet Miers, on the court.)
On matters of specific protections for working people, Alito has consistently sided with corporations and has offered opinions that would weaken or eliminate constitutional protections for workers from discrimination, health and safety violations, exploitation and so on. According to a letter sent by the AFL-CIO, a major federation of labor unions, to the Senate Judiciary Committee, Alito's hostile opinions towards workers' rights have been documented in at least 25 major cases.
A brief sampling of those cases include an opinion against overtime pay, a rejection of a complaint by the federal Occupational Safety and Health Administration (OSHA) against a company with 33 documented violations, special treatment for coal processing plants that stated those companies don't have to abide by federal regulations for safety and health, and support for the discriminatory practice of not allowing striking workers to return to the job after a strike has ended. Alito also voted in one case to weaken the Family and Medical Leave Act, which prevents employers from firing workers who have medical emergencies.
The ideology of weakening government authority to oversee health and safety concerns, which flows from the right-wing's obsession with smaller government and privatization, has led tragically to disasters like the non-union Sago Mine catastrophe, where hundreds of safety violations were simply ignored, costing the lives of 12 miners. Alito's record shows that he would side with the Sago Mine company owners and corporate bureaucrats against workers who complain about potential hazards.
The AFL-CIO's letter stated that Alito has a 'disturbing tendency to take an extremely narrow and restrictive view of laws to protect workers' rights, resulting in workers being deprived of wage and hour, health and safety, anti-discrimination, pension, and other important protections.'
As Anna Burger, chair of Change to Win, a coalition of labor unions, added, 'Alito's workplace would be one where worker rights would be severely curtailed. Alito's record indicates he would side with those who would deny workers a real voice on the job.'
Anyone who is interested in social equality, civil liberties and rights, a safe workplace and fair treatment on the job – which should be all of us who work for a living or depend on family members who work – cannot afford to see Alito confirmed.
--Joel Wendland is managing editor of Political Affairs and can be reached at jwendland@politicalaffairs.net.
