Antonin Scalia 2: The Wrath of Sam Alito

President Bush selected Judge Sam Alito as his pick to replace Justice O'Connor on the Supreme Court this morning. And what a pick.

The one good thing I can say about Judge Alito is that he's the anti-Miers; he's been a judge for a long time, worked on issues of note, and has a definable judicial philosophy.

But that's ALL the good I can say about him. It doesn't seem possible that President Bush could have picked someone MORE conservative, especially in the realm of social issues.

The case you will hear more about than any other is Planned Parenthood v. Casey. In this case, it was decided that a Pennsylvania law that required spousal notification prior to obtaining an abortion was invalid under the Fourteenth Amendment because it created an undue burden on married women seeking an abortion. Judge Alito was the LONE DISSENTER. Meaning, he felt as though a married woman needed to notify their spouse if she was to get an abortion. His mind-numbing quote: "The Pennsylvania Legislature could have rationally believed," Alito wrote, "that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion." Wow. (Although to be fair, he did have four exclusions in his dissenting opinion: (1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her) But still!!!

Other cases of note:

1. A majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), holding that an Iranian woman seeking asylum could establish that she had a well founded fear of persecution in Iran if she could show that compliance with that country's "gender specific laws and repressive social norms," such as the requirement that women wear a veil in public, would be deeply abhorrent to her. Judge Alito also held that she could establish eligibility for asylum by showing that she would be persecuted because of gender, belief in feminism, or membership in a feminist group.

2. Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001); Two high school students challenged a school district's anti-harassment policy, contending it violated their First Amendment rights. The students believed that the policy prohibited them from voicing their religious belief that homosexuality was a sin. The policy provided several examples of harassment, including: "any unwelcome verbal, written or physical conduct which offends, denigrates or belittles an individual" because of "race, religion, color,national origin, gender, sexual orientation, disability, or other personal characteristics.

In a 3-0 decision, a Third Circuit panel held that such a broadly worded policy prohibits too much speech and violates the First Amendment. In his majority ruling, Alito wrote "No court or legislature has ever suggested that unwelcome speech directed at another's 'values' may be prohibited under the rubric of anti-discrimination."

3. A concurring opinion in Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127 (3rd Cir. 2000), in which Judge Alito recognized that a New Jersey law banning "partial-birth abortions" was unconstitutional in light of the recent Supreme Court case of Stenberg v. Carhart, 530 U.S.914, 20 S.Ct. 2597, 147 L.Ed.2d 743 (2000).

4. A dissenting opinion in United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), arguing that a U.S. law banning private citizens from owning assault weapons violated the Commerce Clause of the U.S. Constitution in light of the then recently decided United States v. Lopez.

5. A dissenting opinion in Bray v. Marriott Hotels, 110 F.3d 986, 989 (3d Cir. 1997), [7] arguing against a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority responded that Alito would have protected racist employers by "immuniz[ing] an employer from the reach of Title VII if the employer's belief that it had selected the best candidate was the result of conscious racial bias."

6. A majority opinion in Williams v. Price, 343 F.3d 223 (3d Cir. 2003), [2]
granting a writ of habeas corpus to a black state prisoner after state courts had refused to consider the testimony of a witness who stated that a juror had uttered derogatory remarks about blacks during an encounter in the courthouse after the conclusion of the trial

7. Alito wrote the majority opinion [1] in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999), holding that a holiday display on city property did not violate the Establishment Clause because it included secular symbols, such as a large plastic Santa Claus, in addition to religious symbols. Such mixed displays had previously been held constitutional by the U.S. Supreme Court. The ACLU argued that a previous city display that was ruled unconstitutional because it lacked secular symbols colored the purpose of the new display.


Thanks to Wikipedia for letting me borrow the above language.

So we see a deeply conservative individual, one who is obvioulsy oppesed to abortion and reproductive rights. He's also made some aggressive stances in regards to affirmative action.

It is worth noting that many lawyers call him "Scalito" as he is just as conservative as Justice Scalia.

So what does this all mean? This means that Democrats need 6 moderate Republics, a dying breed that should be on the endangered species list. Potential allies include John McCain, Lincoln Chaffee, Arlen Spector, George Voinovich, Chuck Hagel, and Olympia Snow.

Many of the names above also happen to be names of people who will want to run for President in 2008, and may be looking for ways to distance themselves from the current administration and show that they are "of the people". Given the war, Miers, Libby, Rove, Katrina, Kyoto - you may see a few of these people break away and try to find a middle path.

Obviously the danger in a path like that is 1) it's really early to do that and not make it so, if you fail, you may not be able to pursue ANY kind of agenda 2) who knows if fallout from Libby will reverberate 3) Presidential nominees come from from a primary process, and partisans vote in the primary; in order to appeal to them, candidates move the edges of their party platforms (just look what happened to the Republicans in 2000).

My hope is five or six of these Republicans grow a backbone and revolt. Besides, the whole concept of lumping the names above in with people like Rick Santorum, Trent Lott and Bush is ridiculous; they're not Republicans at all, given the way they spend. They're simply social right-wingers.