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by Jim Lobe

Alito Hearings Focus On Executive Powers

(IPS) WASHINGTON -- The Senate's confirmation Tuesday of Judge Samuel Alito to serve on the Supreme Court marks a clear victory for Bush and, even more, for the right-wing movement dedicated to reversing many of the gains made by women and minorities over recent decades.

Alito, who will take the seat held for more than two decades by the nine-judge Court's first woman, Sandra Day O'Connor, increases the number of justices who may reliably be expected to take right-wing positions on issues that come before them to four, just one short of a majority.

In addition, Alito's relative youth -- he is 55 -- makes it likely that his right-wing views, which he has professed since he was a young man at university, will be a factor on the Court, whose justices enjoy life tenure, for many years.

"Judge Alito would have enormous impact on our basic rights and our liberties for decades to come," warned Sen. Edward Kennedy, whose efforts to mount a filibuster against the nomination failed due to fears among some fellow Democrats that they would be perceived by the public as being obstructionist.

His confirmation came on a 58-42 vote, the second-closest vote for a Supreme Court justice in more than a century.

All but four Democrats voted against him. They were joined by two senators from liberal northeastern states -- Lincoln Chafee, a moderate Republican from Rhode Island, and James Jeffords, a former Republican from Vermont who became an independent.

Alito was sworn in immediately after the vote, ensuring that he will sit with his eight new colleagues amid the pomp and glitter of Bush's State of the Union Address before Congress Tuesday night.

"The union would be better and stronger and more unified if we were confirming a different nominee, a nominee who could have united us more than divided us," said New York Sen. Charles Schumer, who opposed Alito's nomination, after the vote.

Since his nomination exactly three months ago, Alito's foes voiced particular concern about his views on the abortion rights of women; the power of the executive branch, particularly in time of war; and his views on affirmative action and the rights minorities.

Those concerns were fueled by a written record dating back more than 20 years. In a job application in 1985, for example, he indicated that he opposed a previous Supreme Court decision upholding a woman's right to abortion. In another memo, he questioned the principle of "one person, one vote" on which the Voting Rights Act and other civil rights legislation is based.

As a Justice Department attorney during the Reagan administration, he also wrote memoranda extolling the inherent constitutional powers of the executive branch at the expense of both the legislative and judicial branches of government. This is a particularly sensitive topic at the moment given the Bush administration's current claims that, as commander-in-chief, the president has far-reaching powers that permit him to ignore or redefine international conventions ratified by the U.S. or to eavesdrop on communications of citizens without a warrant.

Like other recent judicial nominees, Alito declined to be specific in answering detailed questions on these issues during his confirmation hearings, insisting that to do so would pre-judge specific cases that could come before the court.

And while he insisted he would keep an "open mind" on all issues that came before him, he raised new concerns among feminist and rights groups when he steadfastly declined to say that he considered Roe v. Wade, the 1973 decision that legalized abortion, to be "settled law."

His answer was a marked contrast to the position taken by Chief Justice John Roberts, Bush's other successful Supreme Court nominee, during his confirmation hearings last summer.

"The right to choose, as protected by Roe v. Wade, is virtually certain to be eviscerated," warned Marcia Greenberger, co-president of the National Women's Law Center, just before Tuesday's vote.

Roberts, whose opinions are not considered to be very different from Alito's, had an easier time than Alito gaining confirmation primarily because he was replacing a fellow-right-winger, the late William Rehnquist, for whom he clerked at an earlier stage in his career. Roberts' ascension to the Court, therefore, did not change its ideological balance.

That is not true of Alito, whose replacement of O'Connor marks a net gain for the right.

"She will be sorely missed," said John Podesta, White House chief of staff under former President Bill Clinton and president of the Center for American Progress, after Tuesday's vote.

"Based on his extensive record of extreme deference to the executive branch, Justice Alito can be expected to ratify many of the virtually unchecked powers that Pres. Bush has claimed since 9/11, from arbitrary detention to warrantless surveillance of American citizens."

Alito, the son of an Italian immigrant whose academic record propelled him into elite universities, was not Bush's first choice. Bush had initially nominated his long-time personal attorney and White House Counsel, Harriet Miers, to replace O'Connor in early October. But she was forced to withdraw several weeks later after a furious revolt by far-right activists and lawmakers who were worried that she was a closet moderate in the O'Connor mold.

Bush quickly nominated Alito, one of a dozen candidates, of whom Roberts was also one, quietly put forward earlier this year by prominent Federalist Society activists, including Reagan's attorney general, Edward Meese.

After serving in Meese's Justice Department and a brief stint and U.S. attorney in New Jersey, Alito was appointed by Bush's father to a federal appeals court in 1990.

In that capacity, Alito was considered a careful judge who was not given to sweeping decisions. In one case, however, Alito voted to uphold a provision of a Pennsylvania law that required a woman to notify her husband before obtaining an abortion. The Supreme Court later explicitly rejected Alito's judgement in the case.

He was again overruled by the Supreme Court in a case in which he argued for restricting the power of Congress to impose a federal law on family and medical leave on the states. According to civil rights groups, he has shown a consistent hostility to the application of federal laws to prevent discrimination on the basis of race or disability to the states.

"From the beginning of his career... Judge Alito has routinely favoured a reading of statutory and constitutional law that curtails the rights of individuals, limits remedies available to them, and undermines the power of Congress to protect those individuals," stated a recent memo by the Leadership Conference on Civil Rights (LCCR), a coalition of nearly 200 rights groups and labor unions.

In that respect, LCCR noted with regret that Alito's confirmation took place on the same day as the death of Coretta Scott King, the civil rights activist and widow of Rev. Martin Luther King, Jr.

"This is a bitter day that the civil rights community will long remember," said LCCR director Wade Henderson. "We have no doubt that Alito's confirmation will take a heavy toll on our nation's hard-won civil rights gains."

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Albion Monitor   February 2, 2006   (

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