ACLU Says Alito Confirmation Would Erode Balance of Powers, Harm Civil Rights and Liberties, Threaten O'Connor Legacy

January 19, 2006 12:00 am

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WASHINGTON – In official testimony submitted to the Senate Judiciary Committee, the American Civil Liberties Union offered a detailed explanation behind its decision to oppose the nomination of Judge Samuel A. Alito, Jr. to the Supreme Court, citing his “proven record of undue deference to executive powers” and a hostility to civil liberties and civil rights that could “change the country for years to come.”

“We are witnessing an extraordinary time in history when our executive branch is centralizing power and bypassing other branches of government,” said ACLU Executive Director Anthony D. Romero. “At a time when our president has claimed unprecedented authority to spy on Americans and jail people indefinitely without trial, America needs a Supreme Court justice who will uphold our precious civil liberties, staying true to the balance of powers envisioned by our Founders. Judge Alito does not fit that mold.”

Romero noted that Alito has promoted an expansive view of executive authority and a limited role for the other branches of government in checking potential abuses of that authority. Romero drew attention to a 2000 speech to the Federalist Society in which Judge Alito indicated his belief in a unitary theory of the executive, which he said, “best captures the meaning of the Constitution’s text and structure.” Under this theory, Alito said, “the president has not just some executive powers, but the executive power – the whole thing.”

That speech was consistent with a 1986 document written by Alito as a Reagan Justice Department lawyer in which he argued for the increased use of “presidential signing statements” intended to trump congressional intent and legislative history and “increase the power of the Executive to shape the law.”

By replacing Justice Sandra Day O’Connor, a critical moderate swing vote on the Court, Romero stated that Alito “could dramatically change the direction of the Court.” O’Connor’s legacy of pragmatism and careful moderation would be threatened by Alito, a conservative who has expressed “particular pride” in his role as a Reagan official opposing affirmative action and women’s reproductive choice-positions he claimed to “personally believe very strongly.”

“These remarks, made two decades ago, would be easier to discount if they were not largely consistent with positions Alito has taken during his fifteen years on the United States Court of Appeals for the Third Circuit,” Romero added. “Credentials alone do not warrant elevation to the Supreme Court; one’s judicial philosophy is paramount.”

During his 15 years on the federal bench, Alito has regularly used his judicial discretion to narrow and restrict civil rights and civil liberties protections, illustrating a broader pattern of privileging government power over individual rights. Romero noted that while Alito’s assurances that he would respect stare decisis, that offers little comfort since “as a Supreme Court justice, unlike a court of appeals judge, Alito would create precedent according to his own interpretation, not be bound by it.”

Read the ACLU’s statement for the record on Judge Alito >>

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