Judge Samuel Alito’s Disturbing Record on Civil Rights

To: Interested Parties
From: Wade Henderson, Executive Director
Re: Judge Samuel Alito’s Disturbing Record on Civil Rights
Date: January 5, 2006

Executive Summary

The Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, believes that no individual should be confirmed to the Supreme Court unless he or she has clearly demonstrated a strong commitment to the protection of civil rights and liberties. Judge Samuel Alito’s record reveals a history of troubling beliefs and decisions with respect to civil rights. From the beginning of his career, through his decision making as a jurist on the United States Court of Appeals for the Third Circuit, Judge Alito has routinely favored 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.

This disturbing record on civil rights is at the core of LCCR’s opposition to Judge Alito’s nomination to be an Associate Justice on the U.S. Supreme Court, and has given a broad range of groups, including as the NAACP, the AFL-CIO, the Mexican American Legal and Educational Fund, the Asian American Justice Center, the National Women’s Law Center, Unitarian Universalist Association, and the National Coalition for Disability Rights, no choice but to oppose him.

LCCR is particularly concerned that Judge Alito’s overly restrictive views and narrow interpretation of the law have deeply informed his judicial decision making, putting him outside of the judicial mainstream on a number of key civil rights issues, including voting rights, employment discrimination, the rights of criminal defendants, and the power of Congress to prevent and remedy discrimination. Below, we list aspects of Judge Alito’s record that the civil rights community believes should be scrutinized very closely during his hearings before the Senate Judiciary Committee next week:

Judge Alito’s Questionable Record on Civil Rights. Judge Alito stated unequivocally in a 1985 job application that he enjoyed advancing restrictive civil rights positions of the Reagan administration and personally believed in them. He also questioned leading Supreme Court rulings protecting the constitutional rights of people accused of crimes as well as the reapportionment decisions that established the principle of “one person, one vote.” Throughout his career, including when he has been called upon to make a decision in these areas, Judge Alito has routinely favored 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.
- Enmity to “One Person, One Vote.” In his 1985 job application Judge Alito wrote, that “I developed a deep interest in constitutional law, motivated in large part by my disagreement with Warren Court decisions,” specifically mentioning the Court’s rulings on legislative reapportionment. Judge Alito’s disagreement with these decisions more than two decades later is shocking because those decisions helped secure equal voting rights for all Americans by establishing the doctrine of “one person, one vote.”
- Propping up Employment Discrimination. Judge Alito actively participated in the Reagan administration’s efforts to use both the federal courts and Congress to make it harder to prove discrimination and to limit types of solutions available to remedy discrimination, such as affirmative action. As a judge, his decisions show a pattern of shackling civil rights laws by placing additional burdens on civil rights plaintiffs and making it harder to prove discrimination. See, e.g., Bray v. Marriott Hotels,1 (Alito’s dissenting opinion called for an evidentiary standard that would have, according to the majority, “eviscerated” one of our nation’s key antidiscrimination laws).
- Restricting Rights of Criminal Defendants. In his 1985 job application, Judge Alito first expressed his hostility toward the Warren Court’s decisions in this area. His philosophical position in favor of limiting the core constitutional rights and civil liberties of those accused of crimes extends to his 15 years on the bench, where the overwhelming majority of his decisions in criminal cases show an excessive tendency to defer to police and prosecutors at the expense of individual Americans. See, e.g., Doe v. Groody2 (Alito argued, in dissent, that police officers who strip-searched a suspect’s wife and ten-year old daughter were entitled to qualified immunity, even though they were not named in a search warrant) (Alito, J., dissent); Riley v. Taylor3 (finding no constitutional violation in the prosecution’s apparent use of peremptory challenges to exclude black jurors from a death penalty case involving an African-American defendant) (Alito, J., dissent).
- Hog-tying the Power of Congress to Prevent and Remedy Discrimination. Judge Alito noted in his 1985 application that he “believe[s] very strongly in . . . federalism.” Over the course of his career, Judge Alito’s decisions have shown a disturbing tendency to favor “states’ rights” over protecting the rights of ordinary Americans. See, e.g., United States v. Rybar4 (Congress did not have the power to use its Commerce Clause authority to protect Americans from machine gun violence) (Alito, J., dissent).

Based on his history, philosophy, and performance on the bench, LCCR, along with many in the civil rights community, has concluded that Judge Samuel Alito will not bring a balanced conservatism in the mold of Sandra Day O’Connor to the Supreme Court. Instead he would bring a more hardened ideology that is outside of the judicial mainstream on a number of critical civil rights issues and that is well to the right of where most Americans stand. Our opposition to Judge Alito’s nomination to the Supreme Court is based firmly on his troubling civil rights record and his failure to demonstrate a clear commitment to protecting the civil rights of all Americans and enforcing our nation’s civil rights laws.

Introduction

The Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, has since its founding coordinated the national legislative campaign on behalf of every major civil rights law. LCCR believes that any nominee for the United States Supreme Court must be committed to upholding and enforcing these laws; and that no individual should be confirmed to the Supreme Court unless he or she has clearly demonstrated a strong commitment to the protection of civil rights and liberties. It is in this context that LCCR conducted a careful review of current Supreme Court nominee Judge Samuel Alito’s record, including his decisions, writings, and speeches on issues critical to protecting the civil and constitutional rights of all Americans.

As this memorandum outlines, Judge Alito’s record reveals a history of troubling beliefs and decisions with respect to civil rights, a history that manifests itself from early on in his career and is especially clear in his decision making as a jurist on the United States Court of Appeals for the Third Circuit. This disturbing record on civil rights is the core foundation of LCCR’s opposition to Judge Alito’s nomination to be an Associate Judge on the Supreme Court.

It is not a surprise that President Bush would choose a nominee who is conservative. However, LCCR believes that Judge Alito is not only conservative, but ideologically driven, and if confirmed, would reverse core decisions at the heart of our nation’s civil rights protections. This would be a deal-breaker for any nominee, but the stakes are even higher here because Judge Alito has been nominated to fill the seat of retiring Justice Sandra Day O’Connor, a crucial deciding vote in so many pivotal 5-4 civil rights cases.

LCCR is particularly concerned that Judge Alito’s restrictive views and narrow interpretation of the law have deeply informed his judicial decision making, putting him well outside of the judicial mainstream on a number of civil rights related issues, including voting rights, employment discrimination, the rights of criminal defendants, and the power of Congress to prevent and remedy discrimination. These are issues that should be scrutinized very closely during his confirmation hearings before the Senate Judiciary Committee.

Judge Alito’s Questionable Record on Civil Rights

Judge Alito’s 1985 application to be the Reagan administration’s Deputy Assistant Attorney General in the Office of Legal Counsel reveals the beginnings of his ideology and subsequent judicial philosophy. In that application, he strongly embraces the conservative ideology of the Reagan administration, singling out his work to restrict affirmative action and limit the remedies available to victims of discrimination as areas that he was “particularly proud.” He stated unequivocally that he enjoyed advancing those positions of the administration and personally believed in them. In addition, beyond agreeing with the administration’s positions, he stated his own, highlighting his disagreement with key Warren Court decisions impacting criminal procedure, the Establishment Clause, and reapportionment.

The 1980’s were a historically significant time in the battle to secure hard-won civil rights. During this time, the Reagan administration embarked on an effort to limit the scope of the Voting Rights and Civil Rights Acts, to make it harder to prove and secure full remedies for discrimination. Judge Alito embraced the administration’s positions during these times, both professionally and personally, and supported its efforts to restrict civil rights. Judge Alito’s comments on the Warren Court seem to take his ideology a step further, as he questioned leading Supreme Court rulings protecting the constitutional rights of people accused of crimes as well as the rulings that established the constitutional principle of “one person, one vote” and which paved the way to secure equal voting rights for all Americans. These positions are extremely troubling and raise serious questions about his fitness to serve on the Supreme Court.

Although Judge Alito now claims that these were just words on a job application, his record reveals something different. A careful analysis shows that the positions he took on that job application manifest themselves repeatedly throughout his career, and when he is called upon to make a decision in these areas, the ultimate result is that he routinely favors 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.

Voting Rights

As the Supreme Court itself has noted, the right to vote is the most precious of rights because all other rights are “illusory if the right to vote is undermined.”5 LCCR has, since its creation, fought to secure equal voting rights and ensure fair representation of minority voters. The reapportionment decisions of the Warren Court paved the way to securing these rights through the principle of “one person, one vote.” Discriminatory requirements like poll taxes and literacy tests, combined with the fact that rural voters often had more political power than urban residents, virtually guaranteed that minorities would be excluded from meaningful participation in the democratic process. The principle of “one person, one vote” was first articulated in the Supreme Court’s decision in Gray v. Sanders6 where the Court ordered voting districts to be redrawn more fairly so that they met the Constitution’s objective of equal representation for equal numbers of people. The Court further refined this principle in Baker v. Carr,7 breaking new ground when it declared that the federal courts had a role to play in securing equal representation; in Wesberry v. Sanders,8 when it invalidated Congressional districts in Georgia because of disparities that violated the Equal Protection Clause of the 14th Amendment; and in Reynolds v. Sims,9 when it extended these principles to state legislatures.

Judge Alito writes in his 1985 job application that “I developed a deep interest in constitutional law, motivated in large part by my disagreement with Warren Court decisions.” specifically mentioning decisions on reapportionment. At the time Judge Alito wrote his application—two decades after these decisions were rendered—the decisions were more than settled law; they could fairly be described as “superprecedent,” having become ingrained in our constitutional law. Judge Alito’s disagreement with these decisions more than two decades later is shocking because those decisions stand as a catalyst for securing equal voting rights for all Americans and the foundation for equal representation and equality for all our citizens.

Employment Discrimination

The Civil Rights Act of 1964 was a critical first step to preventing and remedying discrimination in employment. During the Reagan administration, there were serious attempts to undermine this law. Judge Alito was an active participant in the administration’s efforts to use the federal courts to limit types of solutions available to remedy discrimination, such as affirmative action. Not only does his 1985 application note his personal commitment to the administration’s policies, but during his tenure in the Solicitor General’s office, he actively participated in cases that sought to restrict affirmative action remedies, which he mislabeled as “quotas.” As Assistant to the Solicitor General, Judge Alito signed on to several amicus briefs that sought to make it more difficult to order relief in cases where discrimination was proven. The cases are a clear indication of Judge Alito’s allegiance to an ideology that is consistently present in his later rulings as a judge on the Third Circuit.

In almost every employment discrimination case that has come before him on the Third Circuit, Alito has decided against the employee. In Bray v. Marriott Hotels,10 his dissenting opinion analyzed the evidence in a way that prompted the majority to say that “Title VII would be eviscerated if our analysis were to halt where the dissent suggests.”11 As the lone dissenter in Sheridan v. E.I DuPont de Nemours and Co., 12 a gender discrimination case, Alito – as the lone dissenter in a 10-1 ruling – applied the law in a way that would have effectively raised the evidentiary standard and required more evidence from the victim before she would be permitted to obtain a jury verdict. His narrow analysis extends itself to disability cases as well; when Judge Alito dissented in Nathanson v. Medical College of Pennsylvania,13 his colleagues noted that under the standards he laid out, “few if any Rehabilitation Act cases would survive summary judgment.”14

Judge Alito’s record on employment discrimination and remedies such as affirmative action raises serious concerns about whether he would be committed to strong enforcement of our nation’s civil rights laws. His decisions show a pattern of advancing limited readings of civil rights laws, placing greater burdens on civil rights plaintiffs, and making it harder to prove discrimination.

Rights of the Accused

LCCR has routinely sought to defend criminal procedural protections because they are critical to providing fairness for all defendants in the criminal justice system whether they are rich or poor, black or white. The Warren Court exemplified this principle in its decision making in the 1960’s, issuing decisions guaranteeing that all defendants charged with a felony would have a lawyer; protecting individuals from warrantless searches; and, perhaps most famously, requiring that anyone arrested be told of their “Miranda” rights. While Judge Alito’s hostility in his 1985 application toward the Warren Court’s decisions in this area is the first indication of a philosophy aimed at limiting the core constitutional rights and civil liberties of those accused of crimes, that antagonism also extends to his 15 years on the bench, where the overwhelming majority of his criminal cases show a pattern of excessive deference to police and prosecutors at the expense of individual Americans.

Judge Alito’s criminal decisions reveal a predisposition against criminal defendants in cases dealing with search warrants, representation on juries, and the fairness of the death penalty sentences. In Doe v. Groody, 15 Judge Alito’s dissent argued that police officers who conducted strip searches not authorized by their warrant were entitled to qualified immunity, even though the majority concluded that searching the suspect’s wife and ten-year-old daughter went well beyond the police’s warrant. As Judge Chertoff noted, holding otherwise would “transform the judicial officer into little more than the cliché ‘rubber stamp.’”16 Judge Alito’s dissent in Baker v. Monroe Township17 also illustrates his expansive reading of search warrants. Here, the majority found a warrant used to search a mother and her children to be constitutionally deficient because it had no names, but Judge Alito argued that the lack of particularity on the warrant actually allowed the officers more leeway to search anyone on the premises.

His pattern of deferring to law enforcement or prosecutors is also evidenced by his failure, in Riley v. Taylor,18 to find a constitutional violation in the prosecution’s apparent use of peremptory challenges to exclude black jurors from a death penalty case involving an African-American defendant. His dissent in this case illustrates a disregard for the impact of racially motivated peremptory jury strikes on African-American defendants, and drew a sharp rebuke from the majority, which said his analogy calling the exclusion of black jurors a statistical oddity effectively “minimize[d] the history of discrimination against prospective black jurors and black defendants.”19 Another chilling example is his decision in Rompilla v. Horn,20 where Judge Alito held that the failure of a defense attorney to investigate and present mitigating evidence about a defendant’s traumatic childhood, alcoholism, mental retardation, cognitive impairment and organic brain damage, did not amount to ineffective assistance of counsel in violation of the Sixth Amendment. His ruling was decried as “inexplicable”21 by the dissent and was overturned by the Supreme Court.22

Judge Alito’s disagreement with Warren Court decisions that guaranteed fairness, especially for minorities who are disproportionately represented in the criminal justice system, followed by his hostility on the bench to the rights of criminal defendants, is again illustrative of a pattern in his jurisprudence that favors a reading of statutory and constitutional law that curtails the rights of individuals. If Judge Alito were confirmed, his tough positions on crime and punishment are likely to add to the Supreme Court’s jurisprudence favoring restricting rights in this area.

Power of Congress to Prevent and Remedy Discrimination

LCCR has long opposed the “states’ rights” movement, which has historically been aimed at restricting the civil rights of African Americans and other racial minorities. Over the last two decades, the Supreme Court and other federal courts, in the name of federalism, have issued decisions that have sought to give states’ rights greater importance than the protection of an individual’s constitutional rights and liberties. States’ rights proponents have sought to undermine the ability of Congress to pass laws to protect Americans from discrimination, environmental harm, and violence—a power that is essential to its core function of protecting the rights of all Americans. Judge Alito noted in his 1985 application that he “believe[s] very strongly in . . . federalism.” Over the course of Alito’s career, this ideology manifest itself in a disturbing pattern of favoring “states’ rights” over protecting the rights of ordinary Americans.

During his tenure on the Third Circuit, Judge Alito has engaged in an excessively narrow reading of the Commerce Clause and an excessively broad reading of state sovereign immunity under the 11th Amendment. His decisions show that he would go even further than the current Supreme Court and undercut Congress’ ability to protect Americans. In United States v. Rybar,23 the Third Circuit upheld the conviction of a firearms dealer for the sale of outlawed machine guns, joining six other circuits in finding the federal law banning the transfer or possession of machine guns to be a valid exercise of Congressional authority under its power to regulate interstate commerce. But Judge Alito dissented, arguing that Congress did not have the power to use its Commerce Clause authority to protect Americans from machine gun violence. In Chittister v. Department of Community and Economic Development,24 Judge Alito’s majority opinion would have denied a state employee the benefits of the Family and Medical Leave Act of 1993 (“FMLA”).25 In Nevada Department of Human Resources v. Hibbs, 26 the Supreme Court later reached an opposite conclusion, holding that state employees could sue their employers under the FMLA.

Judge Alito’s extraordinarily narrow perspective of Congressional power expressed early in his career and demonstrated in his decisions in Rybar and Chittester raises serious concerns about whether he will put “states’ rights” ahead of enforcement of major and historically effective pieces of civil rights infrastructure such as the ban on discrimination in places of employment or public accommodation in the Civil Rights Act of 1964; and whether he will hold a restrictive view of Congress’ power to move the country forward with additional civil rights laws such as hate crimes and non-discrimination legislation.

Conclusion

Judge Alito, during his tenure at the Reagan administration and now as a federal judge, has exhibited a consistent and unwavering hostility to core constitutional and civil rights. LCCR urges the Senate to examine this record carefully. The stakes could not be higher. A closely divided Supreme Court hangs in the balance and the protection of our most basic rights and freedoms are at risk. LCCR believes that Judge Alito will not bring a balanced conservatism in the mold of Sandra Day O’Connor to the bench. He brings instead a judicial philosophy and ideology that is well outside of the judicial mainstream on a number of critical civil rights related issues, including voting rights, employment discrimination, the rights of criminal defendants, and the power of Congress to prevent and remedy discrimination. Our opposition to Judge Alito’s nomination to the Supreme Court is based firmly on his extremely troubling civil rights record and the failure of the nominee to demonstrate a clear commitment to protecting and enforcing our nation’s civil rights laws.