Excerpts From ACLU Report on the Nomination of Judge Samuel A. Alito Jr., to be Associate Justice on the United States Supreme Court

Document Date: January 3, 2006

In accordance with ACLU Policy 519, this report summarizes the civil liberties and civil rights record of Judge Samuel A. Alito, Jr., who was nominated by President Bush on October 31, 2005, to replace retiring Justice Sandra Day O'Connor as an Associate Justice of the United States Supreme Court. ACLU Policy 519 provides:

Whenever a Supreme Court nomination is sent to the Senate, the ACLU will prepare a summary of the candidate's past judicial record (if any), writings, speeches, etc., in regard to civil liberties for use by the Senate as well as by the press and other members of the public in evaluating the nominee.

Judge Alito's public record is an extensive one, which explains the length of the accompanying report. In preparing this report, we reviewed his judicial opinions on civil liberties and civil rights, including his concurrences and dissents. We also reviewed some of the significant cases in which Judge Alito joined the opinions of other judges. We reviewed the answers he submitted in response to the Judiciary Committee's questionnaire, and the memos he wrote while in government service that have so far been released.

Perhaps the best description of Judge Alito's overall philosophy was provided by Judge 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,” he wrote, “and an adherent to the same philosophical views that I believe are central to this Administration.” He 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 Judge 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 Judge 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.

Judge 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. As every lawyer knows, however, there is considerable room to interpret Supreme Court decisions and congressional statutes. Judge Alito has regularly used that opportunity to rule against civil rights and civil liberties claims. For example, Judge 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, Judge 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.

Judge Alito has also taken a narrow view of congressional power in two noteworthy cases. First, Judge 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, Judge 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, Judge 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 Judge Alito reflects these broader patterns. The ACLU has been directly involved in three Establishment Clause cases before Judge Alito — one involving graduation prayers and two involving holiday displays — and lost Judge 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 Judge 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 Judge 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, Judge 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 Judge 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.

Samuel Alito was born in 1950 in Trenton, New Jersey. He received his B.A. from Princeton University in 1972 and his J.D. from Yale Law School in 1975. While at Yale, Alito served as an editor of the Yale Law Journal. After law school, he clerked for Judge Leonard A. Garth on the Third Circuit from 1976 to 1977.

Following his clerkship, Alito served as an Assistant U.S. Attorney in the District of New Jersey until 1980. From 1981 to 1985, he served as an Assistant to the U.S. Solicitor General, Rex Lee. In that capacity, he argued 12 cases before the Supreme Court. He then worked for two years in the Office of Legal Counsel as Deputy Assistant Attorney General under Charles Cooper, where he provided constitutional advice for the Executive Branch. In 1987, Alito was nominated to serve as U.S. Attorney for the District of New Jersey and unanimously confirmed by the Senate. During his time as United States Attorney, he handled cases involving organized crime, child pornography, and a terrorism case against a member of the Japanese Red Army who was sentenced to 30 years in prison for plotting to bomb a Navy recruiting center.

President George H. Bush nominated Judge Alito to the U.S. Court of Appeals for the Third Circuit in 1990. Alito was confirmed by the Senate on April 27, 1990 on a unanimous voice vote.

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