White House Talking Points: Alito

Courtesy of Is That Legal?

Responses to Likely Attacks: Judge Samuel A. Alito

1) Attack: Alito upheld a Pennsylvania anti-abortion law that the Supreme Court overturned in Planned Parenthood v. Casey.

Response:

a) In Planned Parenthood v. Casey, Judge Alito agreed with the Third Circuit majority that Pennsylvania’s informed consent, parental consent, and reporting and public disclosure requirements were constitutional. The Supreme Court upheld these holdings.

b) Judge Alito also concluded that the spousal notification requirement was constitutional, based on the “undue burden” standard articulated by Justice Sandra Day O’Connor in Supreme Court cases (Webster v. Reproductive Health Services and Hodgson v. Minnesota) that had addressed the abortion issue following Roe v. Wade.

c) Judge Alito did not make up the spousal notification provision. The voters of Pennsylvania enacted it, and it contained four exceptions to the spousal notification requirement: (1) if the woman believed the husband was not the father, (2) if the husband could not be found after diligent effort, (3) the pregnancy was the result of a spousal sexual assault that was reported to authorities, and (4) the woman believed the notification was likely to result in the infliction of bodily injury on her. Judge Alito was merely called upon in his role as a judge to determine if the voters of Pennsylvania had violated the Constitution by enacting such a statute.

d) Judge Alito noted in his opinion in Casey that the Planned Parenthood plaintiffs challenging the Pennsylvania statute had made a facial challenge to the statute: that is, in order to strike it down, one would have to find that there was not a single circumstance in which the statute could be applied consistent with the Constitution. That he noted this in 1991 shows his attention to detail, precedent, and applicable legal standards: this term – 14 years later – the Supreme Court is finally attempting to clarify its own confusing precedents on the applicable standard of review question that Judge Alito identified.

e) Judge Alito has shown that he respects and follows Supreme Court precedent and does not automatically rule for or against abortion laws. Indeed, in Planned Parenthood v. Farmer, Judge Alito voted to strike down New Jersey’s ban on partial birth abortion. The Supreme Court previously had invalidated a similar Nebraska law, and Judge Alito emphasized the “responsibility” of judges “to follow and apply controlling Supreme Court precedent.”

2) Attack: Alito also subscribes to a states’ rights approach that undercuts the ability of federally elected representatives to enact laws that protect civil rights, an approach that leaves women vulnerable.

Response: Judge Alito’s federalism rulings faithfully applied settled Supreme Court precedents.

a) In United States v. Rybar, Judge Alito argued in dissent that Congress could not regulate wholly intrastate possession of machineguns. He simply applied the Supreme Court precedent United States v. Lopez, which struck down a nearly identical ban on possessing guns near schools. Judge Alito said explicitly that states can ban possession of machine guns and that Congress could reenact the law if it found that intrastate possession of machine guns substantially affected interstate commerce.

b) In Chittister v. Dep’t of Community and Econ. Dev., Judge Alito ruled that parts of the 1993 Family and Medical Leave Act violated states’ Eleventh Amendment sovereign immunity. That ruling was unanimous, joined by two Democratic appointees. Scores of other Democratic appointees have agreed that parts of the law were unconstitutional. States and the Federal Government remained free to ensure adequate family leave, and Judge Alito noted that every state in the Third Circuit had already enacted generous family-leave policies.

3) Attack: Alito has a disturbing record in cases involving discrimination based on race, disability and gender. Under his judicial philosophy, victims would face near-impossible burdens to prove their discrimination.

Response: Judge Alito is even-handed and fair to employees and employers.

a) In Robinson v. City of Pittsburgh, Judge Alito reversed a trial judge’s decision to throw out the plaintiff police officer’s sexual-harassment claim. Judge Alito held explicitly that a plaintiff need not suffer monetary loss to show that she suffered an adverse employment action.

b) In Konstantopoulos v. Westvaco Corp., Judge Alito agreed that the plaintiff had not proved sexual harassment. Her only evidence of discrimination was that her co-workers had “squinted their eyes and shook their fists” at her, and that a colleague had once thrown her lunch away.

c) In Sheridan v. E.I. Dupont de Nemours & Co., Judge Alito argued that courts should not be required to rule automatically for employees whenever they show that an employer’s explanation is pretextual, but stressed that in practice employees should almost always win these cases.

4) Attack: Alito is a notorious foe of church-state separation.

Response: Judge Alito’s opinions stress the importance of neutrality, neither specially burdening religion nor granting it special benefits. He has resisted government efforts to impose discriminatory burdens, especially on religious minorities.

a) He struck down a police policy that required Sunni Muslim police officers to shave their beards, because they believed they had a religious duty to grow beards.

b) He struck down a school policy that allowed nonreligious student groups to distribute informational materials but forbade religious student groups to do the same.

c) He struck down a state permit requirement that made no exception for a Native American who wished to keep a wild bear, which his faith regards as sacred.

d) He has also ruled that a city could erect a holiday display that included not only a crèche and a menorah, but also a Christmas tree, Santa Clause, Frosty the Snowman, a sled, and Kwanzaa symbols. In doing so, Judge Alito simply applied the governing Supreme Court precedent, Lynch v. Donnelly.

These points attempt to address what the White House considers to be the weaknesses in Alito's nomination. You also have to wonder what Arlen Spector will do--he can't ignore Alito's position in Casey, that's for sure.

Atrios wonders, "It's time to see if the guy has any actual principles or if the "moderate pro-choice Republican" thing he's milked his whole career was just a scam."

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