Honorable Arlen Specter
Chairman
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, D.C. 20510

Honorable Patrick Leahy
Ranking Member
Committee on the Judiciary
152 Dirksen Senate Office Building
Washington, D.C. 20510

Re: Nomination of Samuel A. Alito, Jr. to the United States Supreme Court

Dear Chairman Specter and Senator Leahy:

The American Civil Liberties Union would like to express its deep concern over many of the civil liberties and civil rights positions advanced by Judge Samuel A. Alito, Jr., President Bush’s nominee to replace retiring Justice Sandra Day O’Connor on the Supreme Court. In addition to this letter summarizing our concerns, the ACLU has written a comprehensive 68-page report on the civil liberties and civil rights record of Alito, which is enclosed with this letter and is also available at: http://www.aclu.org/scotus/2005/23216res20051222.html.

Alito has an extensive public record accumulated over a quarter century as a federal prosecutor, Justice Department attorney, and federal judge. The challenge for the Senate is to determine the extent to which the civil liberties and civil rights positions advanced by Alito as an advocate, legal advisor, or lower court judge reflect the approach he would take in deciding cases as a Supreme Court justice if confirmed.

Alito has been nominated to replace a justice who has often been a moderating voice and critical swing vote on civil liberties and civil rights issues. The Senate must fully consider Alito’s legal and judicial philosophy, approach to decision-making, and possible impact on the role of the Court as a protector of civil liberties and civil rights in determining whether he should replace Justice O’Connor.

The ACLU is deeply concerned with the nomination of Alito to replace Justice O’Connor because perhaps the best description of Alito’s overall philosophy was provided by Alito himself in 1985, when he submitted a now well-publicized letter to the Reagan Administration seeking a position with the Justice Department’s Office of Legal Counsel. "I am and always have been a conservative, and an adherent to the same philosophical views that I believe are central to this Administration," he wrote. Alito then went on to explain that he had been inspired to attend law school by his disagreement with the decisions of the Warren Court, "particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment." He also expressed particular pride in the role he had played in the Solicitor General’s Office in helping to craft Supreme Court briefs arguing "that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion." Finally, his letter proclaimed, in stark contrast to the position taken by Chief Justice Roberts during his recent confirmation hearings, that these were positions "in which I personally believe very strongly."

These remarks, made two decades ago, would be easier to discount if they were not largely consistent with positions that Alito has taken during his fifteen years on the United States Court of Appeals for the Third Circuit. In addition, they are particularly worrisome because they involve a series of issues – race, religion, and reproductive rights – in which Justice O’Connor has played a critical role on the Supreme Court as an often-decisive swing vote. It is not enough, therefore, to evaluate Alito’s record in the abstract. It must be considered in light of the Justice whom he will be replacing on the Supreme Court, if confirmed.

Alito’s intellectual qualifications are not in doubt. He has a stellar academic record and has held a succession of important government positions during his career. His opinions as a judge are thoughtful and, on the whole, cautious. Generally speaking, he operates within existing precedent rather than rails against it. This judicial style may be partially temperamental; in part, it undoubtedly reflects his role as a circuit court judge bound by Supreme Court caselaw. However, there is often considerable room to interpret Supreme Court decisions and congressional statutes, and Alito has regularly used that room as an opportunity to narrow and restrict civil rights and civil liberties protections. For example, Alito:

• Wrote a dissent in Planned Parenthood v. Casey arguing that a state’s spousal notification requirement did not unduly burden a woman’s right to privacy, a position later rejected by the Supreme Court; 
• Joined a dissent arguing that a student-led prayer at a high school graduation ceremony did not violate the Establishment Clause;
• Wrote several dissents arguing for tighter standards for plaintiffs seeking trial on their race, gender and disability discrimination claims;
• Dissented from a decision ruling that the strip search of a suspect’s wife and ten-year-old daughter exceeded the scope of the search warrant and was therefore unconstitutional;
• Rejected a death row inmate’s ineffective assistance of counsel claim where the trial counsel had failed to uncover substantial mitigating evidence – a decision later reversed by the Supreme Court;
• Dissented from an en banc ruling in a death penalty case arguing that the prosecution had unconstitutionally used its peremptory challenges to exclude all the black prospective jurors;
• Wrote a dissent arguing that a policy prohibiting all prisoners in long-term segregation from possessing newspapers, magazines or photographs unless they were religious or legal did not violate the First Amendment.

It is, of course, impossible to summarize a fifteen-year judicial career in a few bullet points. But it is also fair to say that these highlighted decisions illustrate a broader pattern of judicial decision-making. By and large, Alito’s opinions make it more difficult for plaintiffs alleging discrimination to prevail, easier for the government to lend its support to religion, and harder to challenge questionable tactics by the police and prosecution.

Alito has also taken a narrow view of congressional power in two noteworthy cases. First, Alito held that Congress had exceeded its power under the Fourteenth Amendment by requiring the states to provide time off for sick employees under the Family and Medical Leave Act. Several years later, the Supreme Court rejected a similar claim in upholding a parallel provision of the FMLA. Second, Alito argued in dissent that Congress had exceeded its power under the Commerce Clause by making it a federal crime to possess a machine gun. This narrow view of the Commerce Clause could have implications in future civil rights cases.

On the other hand, Alito has a generally positive record on issues involving free speech and the free exercise of religion. For example, he upheld an injunction barring a police department from enforcing a rule that prohibited its employees from testifying in court without prior approval in certain cases, and ruled that Muslim police officers cannot be required to shave their beards if other beards are allowed for health reasons.

The ACLU’s own record in cases before Alito reflects these broader patterns. The ACLU has been directly involved in three Establishment Clause cases before Alito – one involving graduation prayers and two involving holiday displays – and lost Alito’s vote in all three. Conversely, he voted with the ACLU when it brought a First Amendment challenge to a Pennsylvania law barring university newspapers from accepting paid liquor advertisements, and when it supported the free exercise rights of Muslim police officers in the case described above. The ACLU represented the plaintiffs in Casey, where Alito voted to uphold the spousal notification provision that the Supreme Court later struck down. It also represented the plaintiffs in a challenge to New Jersey’s ban on so-called "partial birth" abortions, which Alito agreed was unconstitutional based on the Supreme Court’s recent decision in a similar case from Nebraska but refused to join the majority’s broader discussion of the constitutional issues. In addition, Alito rejected our challenge to the constitutionality of a key provision of the Prison Litigation Reform Act, but agreed with the ACLU that Pennsylvania’s foster care policies discriminated on the basis of HIV status in violation of federal disability laws.

In fulfilling its advise-and-consent function under the Constitution, the Senate should carefully review Alito’s record and judicial philosophy. Given how closely divided the present Court is on numerous civil rights and civil liberties questions, there is a great deal at stake. Of course, the Senate cannot fulfill its constitutional obligation of advise and consent unless Alito provides clear answers to specific questions on his civil liberties and civil rights record, and the Executive Branch provides all documents that relate to his work on civil liberties issues. Given the importance of the nomination and the Senate’s obligation of advise and consent, the President should waive any claims of privilege over these documents.

Thank you for your attention to this matter, and please do not hesitate to call us if you have any questions regarding this issue.

Very truly yours,

Caroline Fredrickson
Director
ACLU Washington Legislative Office

Christopher E. Anders
Legislative Counsel
ACLU Washington Legislative Office