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