"No" on Alito -- a Fuller Analysis

The breadth of concerns that NJDC has about Judge Samuel Alito’s nomination to the Supreme Court exceed the scope of what a single missive can readily contain.

PLEASE CONTINUE READING for fuller analysis and resources on this critical issue.

To be sure, there are many troubling items in Judge Alito's record: his expansive view of executive power, his views on women and the landmark decision Roe v. Wade, and his honesty about citing bigoted campus groups like "Concerned Alumni of Princeton University" in previous job applications.

But few issues cut to the heart of being a Jew in America -- or being a member of any minority faith in America -- than Judge Alito's positions on church/state separation. If for these views alone, NJDC today is encouraging the Senate Judiciary Committee and the entire United States Senate to vote against the nomination of Judge Samuel Alito.

What NJDC would like to emphasize is that Alito’s blend of a strong disregard for the Constitution’s protections of religious minorities with a history of judicial activism represents a growing threat to the status of American Jews, as well as to both practitioners of other minority faiths and nonbelievers, as first class citizens.
 
First, what do we know about Alito and the separation of church and state?

Americans United for Separation of Church and State (AU) carefully builds to the conclusion that, [warning, pdf file]

In viewing the Establishment Clause as an encroachment on religious expression rather than as an essential bulwark protecting religious freedom for all Americans, Judge Alito is out of step with both settled Supreme Court precedent and the founders’ vision of how to protect religious liberty in an increasingly diverse society.

Indeed, the contrast between Alito and Sandra Day O’Connor, the modest and comparatively moderate Justice whom Alito would replace, could hardly be more clearly demonstrated than with their opposing level of concern for public coercion of religious minorities.

AU argues [warning, pdf file] , rightly, that in the context of public schools, O’Connor has helped develop a tenuous majority on the Court that understands

[. . .] that children are more impressionable than adults, making them especially susceptible to religious coercion when prayer or other religious practices occur with school officials’ imprimatur; hence, courts should be particularly scrupulous in ensuring that public schools respect the religious freedom of students and their parents by refraining from introducing worship or other religious practices into school activities.

But Judge Alito has adopted precisely the opposite position in several cases — thus underscoring the critical differences between his views and the Establishment Clause jurisprudence of the justice whom he has been nominated to replace.”

Alito’s insensitivity is also revealed when considering governmental displays of religion. AU notes that Alito would allow that which O’Connor understands to be Constitutionally prohibited: the government indicating “favoritism to particular [religious] beliefs or convey a message ofdisapproval to others.” Alito, unlike O’Connor [warning, pdf file], does not seem to understand the protections necessary to allow pluralism to succeed – a point of view unsurprising for a former member of CAP.

Alito’s unrealistic and unsympathetic take on the issues facing religious minorities would be bad enough were he to merely apply his point of view to tinkering in the spaces between major Supreme Court precedent in the area. But Alito has given no reason -- other than some positive-sounding blandishments during his confirmation hearings -- to believe that he embraces a judicial philosophy that could be properly termed “judicial restraint.”

Indeed, while The New Republic loves little more than to express contrarian disapproval of the left – most recently demonstrated by its support for John Roberts’ nomination to be Chief Justice – they have come out in opposition to Alito’s nomination in large part due to their fear that he is a judicial activist.

Their concern is that “Alito's lack of commitment to bipartisan judicial restraint compels us to urge Senate Democrats to vote against his nomination.”

Another way of looking at Alito’s record is that it indicates that he would join Scalia and Thomas in a growing Court faction that is not only resolutely and strongly right wing, but also unencumbered by any conception of judicial modesty that might mitigate the importance of their personal philosophies. 

Consider the following [warning, pdf file]

Years ago, when applying for the position of deputy attorney general in the Reagan Administration Department of Justice, Judge Alito declared that his `deep interest in constitutional law [was] motivated in large part by disagreement with Warren Court decisions, particularly in areas [such as] the Establishment Clause . . . .’ That motivation continues to drive him today.

Given that Alito feels so strongly about overturning the more than forty year history of the Supreme Court protecting religious minorities, American Jews should be extremely worried by the prospect that he will be on the Supreme Court for the next twenty five years or more. The Warren Court’s church/state decisions, including why public school prayer violated religious liberty, helped American Jews during the 1960s and 1970s to feel, for the first time ever in a country other than Israel, that they themselves were first class citizens. Jewish vigilance to protect this hard-earned status means coalescing around opposition to a retrograde nominee like Samuel Alito.

And thus we leave to sister progressive organizations the critical task of discussing in detail with Americans essential issues such as:

● UNFETTERED EXECUTIVE POWER

America is a nation of laws – which means that power of the President is necessarily limited by law and by the other, equal branches of government. This basic truth, known to all who have taken high school civics classes, is lost on Alito.

As the ACLU notes, in explaining their decision to oppose only the third Supreme Court nominee in their 86 year history of protecting civil liberties and the Constitution: “Throughout his career, Judge Alito has promoted an expansive view of executive authority and a limited view of the judicial role in curbing abuses of that authority.”

● WILL COURTS ENSURE THAT WOMEN ARE FIRST CLASS CITIZENS?

As The National Council of Jewish Women (NCJW) notes, “Judge Samuel A. Alito, Jr., has demonstrated that he is a devoted ideologue who would, in fact, roll back, rather than defend, hard-won constitutional freedoms. He has opposed reproductive rights and the legal autonomy of women.”

● WAS HE HONEST ABOUT HIS SUPPORT FOR HATEFUL EXCLUSION?

Alito frustrated well-meaning observers of his nomination hearings when he plead ignorance about the views of the notoriouusly abhorrent group, “Concerned Alumni of Princeton University.”

People for the American Way note [warning, pdf file] that in

his 1985 application for a promotion to Deputy Assistant Attorney General in the Reagan Justice Department, Alito cited his membership in CAP as one of two groups he mentioned to help convince the Administration of his suitability for the job and answer a White House question specifically asking him to show his “philosophical commitment to the policies of this Administration. [. . .]

Given CAP’s abhorrent views and the often ugly rhetoric with which it promoted them, Alito -- having touted his CAP membership to help get a high level job in the Reagan Administration -- not surprisingly was questioned extensively at his hearing about CAP. Alito claimed total amnesia about the [high profile and controversial alumni] organization, maintaining that he had `no specific recollection of that organization’ or of its ugly rhetoric about women, racial minorities, and gay people."

UPDATE: to let your Senators know that religious freedom matters deeply to you, click on this campaign -- and let other concerned people know that it isn't too late.

Comments

WHY DON'T YOU HAVE A FORM LETTER FOR US TO E-MAIL?

[Jeff H]

Good point -- please go to our advocacy campaign located at http://ga4.org/campaign/supremecourtsen

[Randy Shiner]

OK, OK AU is against him, the New Republic is against him but what do his opinions on the Appeals Court say about him? (I didn't do a full review of every article ever written about him, mea culpa) Is he the freaky rightist that everyone is screeching about? What has he recently written? Who can predict what a person will do in the future? Several current appointees were appointed and passed (albeit Republican - dominated) Congressional scrutiny who were thought to be right-wingers because the President that appointed them (e.g., Reagan)were themselves conservatives but who in fact have been the voice of moderation. Which is exactly what this country needs. Not screeching leftists (Jewish or not)whose knees jerk every time an appointment is sought by our dear President Bush. I am going to check in to see what John McCain and Russ Feingold are thinking and probably follow what they do. I suggest that others do their own thinking on this man and if at all possible, their own research to make up their own minds. Regardless of the screeching, this IS important. I remember attending private, supposedly secular grade school and saying "the Lord's prayer" every morning. It was only later that I realized that the "Lord" to whom my classmates (and I, unwittingly) were referring to was Jesus of Nazareth. Oops!

[David Cohen]

Cheers for NJDC’s conclusion and argument on why Alito should be rejected by the Senate. If confirmed Judge Alito will be on the bench when my grandchildren have children. The stakes are incredibly high.

NJDC articulated a crisp political position emphasizing the strongest of Jewish values for pluralism and democracy with its emphasis on religious liberty and associating NJDC with the values of others who emphasise other critical democracy centered issues.

Hope each Senator gets the statement. You don’t have to be a Democrat to understand its importance.

[DBL]

I disagree with your analysis and conclusions about Judge Alito, but am writing to say that I respect you for taking this position as a political organization. Your honesty is refreshing. Contrast that with the Union of Reform Judaism, which is supposedly a religious, non-political body, but which nonetheless has decided to toe the DNC line on Judge Alito.

[Max]

Since your opposition is predicated upon Alito's onerous association with CAP, your selective omission of his testimony colors (stains) your judgment and conclusions.
The Democrat badgers harrangued about CAP despite his explanation because they were playing the dogeared race card expressly to
insinuate that Republicans in general, and the Reagan administration in particular, were anti-woman racists.
Princeton had outlawed ROTC. Alito was forced to continue his ROTC training at another school. CAP opposed Princeton's rejection of American military training, and Alito shared this one view.
Dozens of the brightest and best resoundingly repudiated these shameful charges based upon his personal and professional character.
Assuming you to be an astute political scientist, I cannot fathom how you could fail to recognize the strategies employed by the Democratic demogogues to denigrate Republicanism with the innuendo that they were enemies of women and minorities.
It is ironic that the Reagan administration first recruited Ms. Rice, today's avowed ally of Israel, and appointed Ms.O'Connor, the first woman Supreme Court Justice.
I also find it unsettling that some vocal segments ostensibly representing Judaism, find greater kinship with atheism, a pervading oxymoron.