President Bush’s Halloween nomination of Samuel Alito to replace Sandra Day O’Connor on the Supreme Court is seen by both right and left as a confrontational “bring ’em on” offensive against mainstream democratic and progressive America.

It was also seen by some as an effort to change the subject from the indictment of Vice President Dick Cheney’s top aide and the administration’s many other problems.

Far-right religious broadcaster Pat Robertson called the Alito nomination “a grand-slam home run.” John Yoo, the former Bush Justice Department official who helped write policies okaying torture of detainees, told the Washington Post, “With this nomination, Bush is saying, ‘Bring it on!’ There is no effort to evade a clash with Senate Democrats. That’s why conservatives are so happy.”

Alito, a U.S. appeals court judge and former Reagan administration official, is considered a legal soul mate of extreme right-wing Justice Antonin Scalia. Both are members of the right-wing Federalist Society.

George Washington University law professor Jonathan Turley said Alito and Scalia would “make a race to the right, but I think it will be by a nose, if at all.” He told NBC’s Katie Couric, “There will be no one to the right of Sam Alito on this court.”

The response from grassroots progressive activists was immediate. On Nov. 1, launched a drive to gather a quarter million signatures in 48 hours opposing the nomination. By the next day it had reached that goal and was nearing its new goal of 350,000.

Wade Henderson, executive director of the Leadership Conference on Civil Rights, said in a statement that Bush had caved to the will of the radical right in nominating “a judicial activist with a record hostile to civil rights, individual rights and the rights of women.” Henderson and a host of other progressive leaders said Alito would push the court far to the right.

“Influential segments of the radical right torpedoed the nomination of Harriet Miers because she didn’t have a proven record of being a ‘movement’ conservative, dedicated to carrying out their political agenda on the bench. The right is now giddy about the nomination of Samuel Alito — undoubtedly because he has such a record,” said Nan Aron, president of Alliance for Justice, a national association of environmental, civil rights, mental health, women’s, children’s and consumer advocacy organizations. “If confirmed to the pivotal O’Connor seat, Judge Alito would fundamentally change the balance of the Supreme Court, tipping it in a direction that could jeopardize our most cherished rights and freedoms.” The Alliance, like many other groups, called on the Senate to reject Alito.

Alito’s record puts him outside mainstream legal thinking, with many of his views rejected by court majorities. In a widely noted 1991 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, Alito wrote a sole dissent supporting a state requirement that women inform their husbands before being permitted to obtain an abortion. The Supreme Court later rejected his view.

In other cases Alito’s dissenting opinion would have made it almost impossible for workers to win race or sex discrimination suits against employers. In one case, the majority said that if the courts followed Alito’s view, Title VII, the federal law barring employment discrimination, “would be eviscerated.”

In another case dealing with disability-based discrimination, the majority said Alito’s standard for proving such discrimination was so restrictive that “few if any … cases would survive.”

In two dissents, Alito upheld intrusive police searches of women and children who were not named in search warrants and were not subjects of any investigation. In one of these, just last year, Alito argued that police did not violate constitutional rights when they strip-searched a mother and her 10-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. Bush’s Homeland Security Director Michael Chertoff, then Alito’s colleague on the circuit court, sharply criticized Alito’s position.

In 2000 Alito ruled that Congress could not penalize state governments for failing to comply with the Family and Medical Leave Act, which requires employers to allow time off for family and medical emergencies. Even Chief Justice William Rehnquist disagreed with this opinion and the Supreme Court reversed Alito’s ruling by a 6 to 3 vote in 2003.

By choosing Alito, a white male, to replace O’Connor — one of only two women on the nine-member Supreme Court, Bush signaled that rallying his ultra-right base was more important than making a gesture toward gender or ethnic diversity on the court, observers said.

Senate Minority Leader Harry Reid (D-Nev.) said Bush’s choice would make the Supreme Court look “less like America and more like an old boy’s club.”


Susan Webb
Susan Webb

Susan Webb is a retired co-editor of People's World. She has written on a range of topics both international - the Iraq war, World Social Forums in Brazil and India, the Israel-Palestinian conflict and controversy over the U.S. role in Okinawa - and domestic - including the meaning of socialism for Americans, attacks on Planned Parenthood, the U.S. as top weapons merchant, and more.