Progressives Take Aim at Alito

Gay groups join choice and labor groups in expressing alarm over new court pick

Fifty-five year old Alito, a graduate of Princeton and Yale Law School, was placed on the federal Third Circuit Court of Appeals, based in Philadelphia, by Bush’s father in 1990. On that court, Alito gained a reputation as a thoughtful but conservative judge. Some pundits have called him “Scalito,” suggesting that his jurisprudence echoes the sharply conservative posture of Justice Anthony Scalia, the Court’s fiercest opponent of gay rights and choice. Before going on the federal bench, Alito’s previous experience included time as a deputy attorney general under President Ronald Reagan and as U.S. prosecutor in New Jersey.

Alito’s profile is also similar to that of Chief Justice John Roberts, who, after some skirmishes between Senate Democrats and the White House over release of documents from Roberts’ time as deputy solicitor general in the George H. W. Bush administration, enjoyed a fairly congenial confirmation process this past summer. Alito has a longer conservative record on the federal judiciary than did Roberts, but he has not necessarily handed progressive opponents any smoking gun with regard to his views on Roe v. Wade, privacy, or LGBT rights.

But gay civil rights organizations and other progressive groups are already raising the alarm about him. Of particular concern is the report that Bush consulted with far right groups in settling on the nomination.

Eric Stern, executive director of the National Stonewall Democrats, although quick to say that it was too early to know if Alito’s record made him a suitable nominee, said the entire selection process should gravely concern Americans.

“This simply rewards the bad behavior of the radical right,” Stern said. “These organizations are hateful and intolerant and are being given a direct input on American policy. They’re making decisions for America that are inconsistent with the beliefs of most Americans.”

Indeed, after the Washington Post reported on Monday that the Concerned Women for America, a conservative and anti-gay organization, had said Bush solicited its opinion on Alito’s possible nomination, the group’s chief counsel, Jan LaRue, confirmed in an interview that the group was contacted by the administration.

“We were consulted,” LaRue said. “He was at the top of our list. We’re very pleased that he was picked.”

Matt Foreman, executive director of the National Gay and Lesbian Task Force, in a terse statement, said, “The country will now be put through a wrenching, divisive, and damaging confirmation process. One more travesty inflicted on this nation by the president and his right-wing allies.”

People for the American Way (PFAW) also came out swinging. Arguing that Alito is completely out of the mainstream of jurisprudence, the organization asserted in a release that he has opposed virtually all civil right claims brought before him.

“Bush completely caved to the extreme right wing,” said Judith Schaeffer, PFAW’s legal director, who confirmed the group would oppose Alito’s nomination. “He’s supposed to be the president of all Americans, but the radical right is pulling the strings.”

A similar statement was made by Joe Solmonese, president of the Human Rights Campaign.

“President Bush chose to placate the far right instead of appealing to the fair-minded values of the American people,” he said. “Alito is the far right’s choice.”

Solmonese later allowed that Alito’s chairmanship of a task force while a senior at Princeton in 1971 indicated he might have sensitivity to LGBT issues. According to the Boston Globe, the task force was part of a class assignment on privacy rights, and that Alito’s group concluded that sodomy should be decriminalized and job discrimination against gays and lesbians illegal.

The Log Cabin Republicans indicated the group would reserve judgment on Alito.

“Log Cabin will carefully study Alito’s record along with his writings and his testimony during confirmation hearings, particularly as they relate to questions of basic fairness for gay and lesbian Americans,” said Log Cabin president Patrick Guerriero in a written statement.

Lambda Legal raised what the group termed “red flags” regarding Alito’s past rulings and what they suggest about how gay rights cases might fare before him. Jon Davidson, the group’s legal director, said potential hostility to Roe v. Wade on any judge’s part should concern LGBT Americans.

“Roe is the foundation for Lawrence,” he said, referring to the 2003 Supreme Court ruling that struck down sodomy laws. “The privacy right of what you do with your body that was the foundation of Roe is inextricably linked to Lawrence. If Roe falls, Lawrence could be in jeopardy.”

In a 1991 Pennsylvania case, Alito, on a three-judge panel, dissented, arguing to uphold a requirement that a woman notify her husband before she receives an abortion. His opinion did not include any wording critical of Roe v. Wade. The Supreme Court upheld the Third Circuit majority, rejecting Alito’s dissent, in a broader ruling that was viewed as a critical upholding of the original Roe decision.

Davidson also noted that while in Reagan’s Department of Justice, Alito was responsible for co-authoring a policy that would have allowed employers to fire HIV-positive workers, even though it was already known then that the virus was not communicable through casual contact.

“What we don’t know is if he was just doing his job by carrying out policy or if he was coming up with these policies, or even if he has changed like the rest of country in their view of the disease,” Davidson said.

Of equal concern to Davidson were Alito’s views of the federal government’s powers to impose obligations upon the states. In a 2000 opinion, Alito ruled that state government employees could not sue under the federal Family Medical Leave Act, a law that provides workers with the ability to take time off to assist loved ones with critical health care challenges.

“Not that gays and lesbians are covered by the FMLA, but if Congress were ever to enact any type of LGBT employment protection or domestic partner benefits, it’s not obvious if Alito would consider that something Congress is actually empowered to do,” Davidson said.

It is also unclear how much opposition Alito will encounter as he continues the rounds of get-to-know-you meetings with senators, and then progresses to Senate Judiciary Committee hearings. Already Bush has called for an up or down confirmation vote before the New Year, signaling his intention to battle any effort at a Democratic filibuster.

“There’s no way you can do an honest hearing by the end of December, or a fair hearing,” said Vermont Senator Patrick Leahy, the senior Democrat on the Judiciary Committee.

Even the Republican chairman of the Senate committee, Arlen Specter of Pennsylvania, said he did not think it was “realistic” to expect hearings before the end of the year given the importance of the nomination.

The pressure on the Bush administration to get the process completed is intense. Faced with the perjury indictment and subsequent resignation of Vice President’s Dick Cheney’s chief of staff, what is increasingly perceived as a foundering Iraq policy, the poor response to Hurricane Katrina, and the sudden crash of the Harriet Miers nomination under conservative pressure, Bush desperately wants a quick vote on Alito to claim at least one victory at year’s end.

Also at stake is Bush’s legacy. Justice Sandra Day O’Connor has been the swing vote on dozens of cases that moved the court to a more centrist, if not liberal, slant. O’Connor provided one of the six votes in Lawrence sodomy majority.

“The big question is will LGBT people get a fair shot with him on the court,” said Lambda’s Davidson. “That’s what we’re trying to find out.”

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