Alito’s world worth rejecting

We already know, based on published opinions, that if appointed to the Supreme Court, Judge Samuel Alito will undermine a woman’s right to choose in ways Justice Sandra Day O’Connor opposed.

However, the Supreme Court is not merely America’s Abortion Review Panel, so if you care about the environment, or about people who live with disabilities, or about civil rights, learn what kind of world Judge Alito envisions, based on his own published record.

In Bray v. Marriott Hotels, Judge Alito’s colleagues on the circuit court ruled that a female hotel worker could at least bring her discrimination claim before a jury. Judge Alito, alone, said no. The majority wrote that Title VII of the Civil Rights Act of 1964 would be “eviscerated if our analysis were to halt where [Alito] suggests.” The Civil Rights Act, as the passing of Rosa Parks reminds us, may be the single most important – and revered – law of the 20th century. Judge Alito’s colleagues were compelled to use strong words rebuking Alito’s extreme attempt to undermine this historic law.

Judge Alito’s dissent in Bray is part of a pattern. Consider a gender discrimination case, again based on the Civil Rights Act, again a hotel maid facing a giant corporation (this time Dupont). An 11-judge panel, both Republicans and Democrats, ALL disagreed with Judge Alito’s lone dissent. Judge Alito opposed giving this woman even an opportunity to bring her case before a jury. The majority said, “[Alito] gives no reason why a plaintiff alleging discrimination is not entitled to the real reason for the personnel decision, no matter how uncomfortable it may be for the employer.”

The far right claims to oppose judicial activism, but consider when another set of judges were forced to rebuke Judge Alito in an immigration case: An African immigrant fled to America, seeking refuge, pointing to a subsequent retaliatory rape of his wife in Africa as evidence of persecution. The other judges on his panel said Alito, in seeking to rule against the African immigrant, would “gut the statutory standard.” In yet another immigration case his colleagues were again forced to point out that Judge Alito ignored “well-established principles” about how to read a statute.

Ignoring “well-established principles” of statutory interpretation. “Gutting the statutory standard.” Clear judicial activism, yet the far right wants Judge Alito – because he is a judicial activist supporting far right political results. Judge Alito is no neutral umpire, but rather a judicial activist.

Consider another lone Alito dissent: A woman, who’d been in a terrible car accident, requested a chair accommodating her disability while attending medical school. Judge Alito wanted to block her claim entirely. His colleagues on the bench opposed him: “Few if any Rehabilitation Act cases would survive sum-mary judgment if [Alito’s] analysis were applied to each [disabled] individual’s request for accommodation.”

Judge Alito, in a Commerce Clause case, argued that Congress cannot pass a law affecting items in commerce if the individual item in that case (a widget, a frog, a machine gun) would not affect interstate commerce – even if cumulatively that category of items (widgets, frogs, machine guns) would influence interstate commerce. Judge Alito’s reasoning was rejected by the majority of judges on his panel. If followed to its logical conclusion, Judge Alito’s interpretation of the Commerce Clause could nullify major pieces of 20th century legislation, including many environmental laws and consumer protection statutes.

How would Judge Alito alter the U.S. Supreme Court? The writing is on the wall (or in his opinions).

Judge Alito disagreed with Justice O’Connor, and several other Republican appointees to our highest court, when he claimed state governments can deny state employees the benefit of the Family and Medical Leave Act.

Here’s another: Judge Alito said a defendant was not entitled to a hearing in what a circuit court judge called a “shocking ineffective assistance of counsel.” On appeal, the Supreme Court majority disagreed with Judge Alito. And consider the majority: Justice David Souter, a Republican appointed by Republican President George H.W. Bush; Justice John Paul Stevens, a Republican appointed by Republican President Ford; and, yes, Justice O’Connor, a Republican appointed by Republican President Ronald Reagan.

One has to be very far right to be far right of Justice O’Connor (as Judge Alito’s written opinions prove him to be). Justice O’Connor, a Goldwater Republican, is no lefty. Indeed Justice O’Connor joined the majority in the most infamous case of the last century, Bush v. Gore, which even conservative scholars admit has no legal basis, merely a political goal (the Republican wins). O’Connor, Souter and Stevens are now and always have been Republicans.

When Woodward and Bernstein’s landmark Supreme Court book, “The Brethren,” came out a quarter century ago, they described Justice Stevens exactly as he was (and is): a moderate Republican. Back then there were actual liberal justices (Thurgood Marshall and William Douglas). Those days are gone. Judge Alito, if appointed, will be the culmination of a quarter-century shift to the far right. Judge Alito, as right-wing activists acknowledge, is the tipping- point nominee.

As always, Sens. Olympia Snowe and Susan Collins will talk about not being swayed by interest groups, but one need not listen to interest groups to know Judge Alito is a right-wing activist judge; one need only compare his opinions with mainstream judicial thought.

With Chief Justice John Roberts, Democrats made the mistake of focusing on his television performance, rather than his record. Supreme Court nominees are not contestants on “Jeopardy.” They are not guests on “Late Show With David Letterman.” It did not help Judge Robert Bork’s cause that he was abrasive, but Judge Bork was rightly rejected, as Judge Alito should be rejected, because they are right-wing activists, ignoring the original intent of the law to suit their political ends.

Will Sens. Snowe and Collins support judicial activism while using moderate rhetoric? Or will they, as true moderates, do everything to vote this nomination down?

Sean Faircloth is a lawyer and an assistant professor of justice studies at University College Bangor. He represents part of Bangor in the Maine House of Representatives.