A Spectre is Haunting the Constitution: Alito
By Rabbi Arthur Waskow
The November 8 Inquirer (in an article by Steve Goldstein) describes Senator
Arlen Specter as being "in the hot seat" on whether to confirm Judge Alito
for the Supreme Court. It reports that he is worried that if he votes against Alito, conservative
Republicans may deprive him of his chairmanship of the Judiciary Committee,
and with it his influence on policy issues that he cares about notably,
asbestos litigation and immigration.
But the Constitution is a far weightier matter than those issues. And Alito
will be helping define it for at least a generation.
So it is important to realize that Judge Alito's radicalism goes far beyond
his disdain for a woman's right to choose whether to have an abortion.
He has tried to overturn pro-worker, pro-environment, and pro-minority
legislation passed by the U.S. Congress by using a very narrow and archaic
reading of the interstate commerce clause of the Constitution. His reading
harks back to the anti-New Deal decisions of the Supreme Court in the early
1930s. Those rulings have long ago been reversed; yet Judge Alito seeks to
resurrect that logic. If that logic were followed, it could invalidate
such New Deal laws as Social Security.
For millennia, religious values and practice have affirmed the importance of
communal action to protect the poor, to support elders, to make sure that
workers are not demeaned or enslaved, to treat the earth as holy. Judge
Alito has denigrated and denied those values. And he has shown contempt for
the ability of Congress to hear various views and come to its own conclusions about the facts and the needs.
So far, the higher courts have rejected Alito's reasoning. But two Supreme
Court Justices have agreed with him. With a Chief Justice already in place
who is to the right of his predecessor and with Alito on the Court, his
ultra-right-wing logic could prevail. So it is crucial to oppose him.
- Alito said that Congress does not have the power under the Commerce
Clause to restrict the transfer and possession of machine guns at gun shows.
He said that Congress must make findings or provide empirical evidence of a
link between a regulation and its effect on interstate commerce. But the
majority said, "Nothing requires either Congress or the Executive to play
Show and Tell with the federal courts at the peril of invalidation of a
- Alito joined in a 2-1 ruling gutting citizens' access to courts under the
Clean Water Act. Although the Act authorizes "any citizen" to bring a "civil
enforcement action" against alleged polluters, the Third Circuit ruling
declared that PIRG did not have standing to sue because it had not
demonstrated a specific case of pollution resulted in serious harm to the
environment (reversing a rare $2.6 million fine handed down by the trial
court for the company's violations of the Act). The majority concluded that
the Constitution denied Congress the authority to pass a law allowing
citizens access to courts in these circumstances. Three years later, the
Supreme Court essentially reversed and rejected Judge Alito's analysis in a
- Alito held that Congress did not have authority to require state
employers to comply with the Family and Medical Leave Act. This ruling was
repudiated by the Supreme Court in a later case in which Chief Justice
Rehnquist wrote the Court's decision.
- Alito would have upheld the strip search of a mother and her ten-year old
daughter, even though the warrant authorizing a search did not name either
of them. Judge Michael Chertoff, now head of the Department of Homeland
Security, criticized that position as threatening to turn the constitution's
search warrant requirement into little more than a "rubber stamp."
- Alito, according to the majority of his fellow-judges, would have
"eviscerated" legal protections against racial discrimination in hiring. His
position would protect employers from suit even in situations where the
employer's belief that it had selected the "best" candidate "was the result
of conscious racial bias."
- Alito would have made it more difficult for a woman alleging gender
discrimination in employment to get her case to a jury.
- Alito rejected claims by an African American defendant who had been
convicted by an all-white jury from which black jurors had been
impermissibly struck because of their race. The full Third Circuit
reversed this ruling, and the majority specifically criticized Alito for
having compared statistical evidence about the prosecution's exclusion of
blacks from juries in capital cases to an explanation of why a
disproportionate number of recent U.S. Presidents have been left-handed.
According to the majority, "[t]o suggest any comparability to the striking
of jurors based on their race is to minimize the history of discrimination
against prospective black jurors and black defendants ..."
All this should be enough. A year ago, Senator Specter met with a group of
rabbis and promised that he would not vote to confirm an "extremist" nominee
for the Court. Alito's extremism threatens to subjugate Congress and put
two generations of decent public legislation in jeopardy.
Senator Specter should rise above his own personal pride of office and his
personal stake in specific policies, and take on the most important role of
his life: defender of the poor, the handicapped, minorities, women, the
earth itself, Congress, and the Constitution. By voting No on Alito.
Rabbi Arthur Waskow
is director of The Shalom
Center, a national organization with headquarters in Philadelphia, and the author of
Godwrestling Round 2.