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November 01, 2005

The Alito that MoveOn didn't mention

This darned judge:

  • Wrote an opinion prohibiting the use of any state-owned facilities for abortions, possibly right down to the public water supply - and in the process looked forward to the day when the Supreme Court could "reexamine Roe." 
  • Voted to uphold burdensome abortion requirements like a 24-hour waiting period and a rule that second-trimester abortions had to be done in hospitals - and wrote that Roe's central holding should be eviscerated.
  • Voted to bar the federal government from banning guns near schools, and from protecting women against sexual assault.
  • Wrote that it should be unconstitutional for the federal government to provide minimum wage and overtime protections to city workers.
  • Wrote an opinion allowing inflammatory evidence into death penalty sentencing hearings that was not relevant to the defendant's blameworthiness - leading dissenting colleagues to decry the "radical" result as the exercise of "power, not reason."

Gosh, that Alito guy sounds terrible!  So we have to keep this extreme, radical, activist, ideologue of a judge off the Supreme Court, right?

Well, no, actually ... those are all opinions written or joined by Justice Sandra Day O'Connor, who is now touted by some Dems as the model of what a Supreme Court Justice should be.

What's my point?  My point is that any appellate judge with years of service will have a long paper trail that is relatively easy to manipulate.  That process of course has already begun for Samuel Alito.  Some of the information on those "quick facts about Alito" lists is accurate, some is misleading, and some is flat-out wrong (the most obvious example, on this list, is that Alito "would overrule Roe v. Wade," a statement that finds exactly zero support in the case to which the list cites, and that is, as far as I know, sheer speculation).

So, as a public service, I am pleased to present some of Judge Alito's decisions that MoveOn, People for the American Way, NARAL, and the rest of the gang probably didn't mention when they asked for your donation to support their anti-Alito campaign:

  • Less than two months ago, Alito held a public housing authority in contempt of court because the authority was overcharging low-income tenants on their utility bills, and awarded sanctions to the tenants.  Alito's opinion reversed the lower court, which had sided with the authority.  Read the case.
  • A woman named Pauline Thomas had a variety of physical ailments that prevented her from holding most jobs.  She had found work as an elevator operator until her position was eliminated, whereupon she filed for disability benefits.  The Social Security Administration and the District Court rejected her claim, on the ground that she could still do her job - even though that job no longer existed in the national economy.  Alito reversed, holding that if, because of your disability, there's only one job you can do, and that job no longer exists, then you are entitled to disability benefits.  Read the case.  (The Supreme Court later reversed Alito's decision, in an opinion by Justice Scalia.)
  • In a first-degree murder case, the defendant had evidence that some of the jurors were racially biased, but the trial court refused to hear it.  Alito reversed the lower courts, ruling that they had clearly violated the defendant's constitutional right to a fair trial, and ordered the lower courts to hold a hearing on his claim.  Read the case.
  • A high school student had for years suffered harassment from his peers in the form of being called "gay," "queer," "faggot," etc.  The student became seriously depressed and unable to function in school.  Alito held that this harassment was serious enough, and the school district's failure to deal with it was significant enough, that the district had to pay for the student to go to school in a neighboring district - reversing the District Court which had sided with the school district and denied the parents' claim.  Read the case.

I could go on and on, but you get the idea - this list doesn't paint quite the same picture as those other lists.  Now, does this prove that Alito is in fact a closet super-liberal who will unexpectedly break to the left if he is confirmed?  Of course not - we can most likely expect Alito to be a pretty reliable conservative on the Supreme Court (though I have no doubt that he, like every other Justice in the history of the Supreme Court, will from time to time surprise and disappoint those who backed his nomination).  All that this - or any of the other "lists" floating around - can prove is that Alito has been a judge for a long time; that he has decided a lot of tough cases that could have gone either way; and that you should be very careful about reading too much into selective "case summaries" proffered by interest groups with an agenda.

Bottom line: make up your own mind.  Do some research on non-partisan sites (SCOTUSblog is always a good place to start, and any Alito opinion published in 1996 or later should be available at Findlaw).  And wait for the confirmation hearings, where you can bet that Alito will be questioned for hours about many of the opinions that the lefties are worried about - that, after all, is what the hearings are for.

Posted by David at 04:06 PM in Law and Lawyers | Permalink


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» Judge Alito and the Pauline Thomas Case: from The Volokh Conspiracy
Does Sam Alito care more for the needy than Justice Ginsburg? Is he more sympathetic to the little guy than Justice Stevens? Yes, he certainly is. And I have proof: Thomas v. Commissioner of Social Security, 294 F.3d 568 (3d Cir. 2002).... [Read More]

Tracked on Nov 1, 2005 6:09:08 PM

» Blue Mass Group on Alito and Lists of Rulings from Dispatches from the Culture Wars
Blue Mass Group has an excellent post about how easy it is to compile a list of rulings for a judge to make them appear to be an extremist. They look at the lists provided by liberal activist groups to... [Read More]

Tracked on Nov 3, 2005 1:25:00 PM

» Alito Roundup from Parableman
I predict that it won't be too long before we start hearing opposition groups to Judge Alito claiming that he likes to give cops the freedom to strip search little girls for their ogling pleasure. Judge Alito's actual decision, based... [Read More]

Tracked on Nov 5, 2005 7:47:17 PM



What about Doe v. Grody?

You obviously know Justice O'Connor much better than I do, but I don't consider her a moderate. I think she's a conservative. That she's not as conservatove as Rehnquist or Thomas and has disappointed those on the right is proof that the country has moved far to tthe right and nothing more.

The only really activist lefty judge I've heard of is Traynor in California who was always making up new torts.

Posted by: Abby | Nov 1, 2005 4:55:58 PM

Doe v. Groody is Alito's now-famous "ten year old strip search case" case. In that case, the officers seeking the warrant had submitted an affidavit requesting permission to search anyone found on the premises. The warrant as finally issued, however, only specified a particular individual, and did not expressly incorporate the affidavit. The issue in the case, basically, was whether the officers were authorized to search everyone on the premises (including the girl), or only the named individual. The majority, reading the warrant literally, limited the permissible search to the one individual; Alito applied what he said was a "common sense" approach and concluded that the better reading of the warrant was that it did extend to "all occupants," and that even if it didn't, a reasonable police officer could have read it that way without violating "clearly established" constitutional norms, which is the standard for granting officers immunity. It's a tough case, and perhaps I wouldn't have decided it the way Alito did, but it's certainly not a blanket approval of strip-searching children.

Re lefty judges: I do think it's fair to say that Warren, Brennan, Blackmun, and Marshall were somewhat activist. Doesn't mean I disagree with their decisions necessarily. But they were activists. Now, though, you're right that there are no more lefty activists - the activists are clearly on the right. It's just not yet clear to me that Alito is one of them.

Posted by: David | Nov 1, 2005 5:23:00 PM

Another point on the Doe v. Groody case: the fact that the "unauthorized" search was performed on a child makes the case more lurid, but actually has absolutely nothing to do with the legal issue before the court. The ONLY issue was whether it was permissible to search persons who were present but not listed on the warrant. The fact that one of them happened to be a child was an unfortunate coincidence.

Posted by: David | Nov 1, 2005 7:21:26 PM

Yes, you can spin his opinions, but simply put his conservative bona fides is nt just an invention of the left. It's sort of why the right was appeased by Bush's nomination.

As to O'Connor, yeah, she's a conservative, but again, it's not just the left that suggests Alito is more conservative. The left, having less wiggle room, lowered the bar. But, you know that, right?

So, I don't think this "gotcha" post says too much.

Posted by: Joe | Nov 2, 2005 12:51:54 AM

Joe, I don't know what kind of judge Alito will be, I assume he will be at least somewhat conservative, but I wouldn't go by the right-wing's reaction to his nomination. They don't know any better than you how he'll vote on the court. They have to act happy about him though to support Bush and make sure the base shows up and votes in '06. To be honest, some of the reaction of the left seems fake to me as well, as this post shows. Both sides seem to be just playing their roles for this nomination. If this were Luttig, Brown, Owen,... I could understand it, but I really haven't seen anything yet that makes the controversy about Alito seem warranted.

Posted by: Del | Nov 2, 2005 10:20:44 PM

David-- like you I am a Massachusetts Democrat, and my first reaction upon learning about Alito was how much ammo the Dems were going to waste on Alito.

I have bookmarked this in del.icio.us and will encourage other Democrats to read this.

Posted by: Jon Garfunkel | Nov 3, 2005 11:30:00 PM

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