The Puppet President

By Matthew Rothschild, The Progressive. Posted November 1, 2005.

Bush didn't waste any time, did he?

He barely had rolled out of bed Monday morning when he rushed in front of the cameras to nominate Samuel Alito to the Supreme Court.

I've heard of changing the subject, but that's got to be an indoor record.

Fortunately, Scooter's indictment is not going to vanish in thin air, Fitzgerald's investigation continues, and Cheney is finally feeling some heat.

But Bush did what he could, and then genuflected to the anti-abortion zealots by giving them just what they wanted: a judge hostile to abortion rights.

As Senator Ted Kennedy put it, "President Bush has picked a nominee whom he hopes will stop the massive hemorrhaging of support on his right wing."

As if on cue, Senator Sam Brownback said, "I commend the President and congratulate Judge Alito."

While on the Third Circuit, Alito dissented in Planned Parenthood v. Casey. Alone among the three-judge panel, he argued that it's OK to force a woman to get her husband's approval before she is allowed to have an abortion.

That put him at odds with the Supreme Court he hopes to join, since the Court ruled in Casey: "Women do not lose their constitutionally protected liberty when they marry."

Alito's confirmation "would radically transform the Supreme Court and create a direct threat to the health and safety of American women," says Karen Pearl, interim president of Planned Parenthood Federation of America.

Alito's record in other respects raises eyebrows. (For a good rundown of his record, go to People for the American Way.)

Alito has been hostile to privacy rights and stingy when it comes to allowing people to sue for racial or gender or disability discrimination or to seek asylum.

In one case (Doe v. Groody), he dissented from a decision by the Third Circuit, which had ruled in favor of a mother and her ten-year-old daughter who were strip-searched by police after they entered the home on a drug warrant for the woman's husband. Alito said that even if the warrant did not authorize the search, "a reasonable police officer could certainly have read the warrant as doing so."

On several discrimination suits, Alito has ruled that plaintiffs need to clear an extremely high bar to bring their claims to court or to prevail there. Alito is "to the right of all nine justices, even Scalia and Thomas, in advocating an extremely high burden of proof for employment discrimination cases," says Marquette law professor Scott Moss.

In (Riley v. Taylor), an African American convicted of murder appealed, in part because blacks were excluded from his jury, according to People for the American Way. When he tried to show statistical evidence that blacks have been repeatedly dismissed from juries when the defendants were black, the defendant did not get a favorable hearing from Alito, who compared this analysis to one that tries to explain why a lot of recent Presidents have been left-handed. One of Alito's fellow judges, Delores Sloviter, scolded Alito for trying "to minimize the history of discrimination against prospective black jurors and black defendants."

In one immigration case (Dia v. Ashcroft), Saidou Dia, who was from Guinea, sought asylum because he said he had worked with "the opposition and his wife was raped and his house burnt down to intimidate him," according to People for the American Way. When he applied for refugee status, the immigration judge denied it, claiming he was not credible, and the Bureau of Immigration Appeals summarily affirmed the judge's ruling. The Third Circuit, with Alito dissenting, said the judge's decision was "at best unexplained and at worst speculative." The majority said Alito would have gutted "the statutory standard."

Finally, Alito, like Roberts, Thomas, and Scalia, once served in the Justice Department. And like Roberts, Alito worked in the Solicitor General's office, arguing for the federal government in cases before the Supreme Court. This experience makes him predisposed to favor the Executive Branch. And that's precisely what we don't need with the runaway executive we have right now.

"This is a pivotal moment in our nation's history," said Anthony D. Romero, the ACLU's executive Director. "The Administration is claiming unprecedented national security powers, reproductive rights are in jeopardy, the teaching of evolution is under attack, and we continue to struggle with a legacy of discrimination. The Supreme Court remains the ultimate safeguard of our constitutional liberties. The Senate has an obligation to ensure that Judge Alito understands and will protect the court's vital position in our constitutional democracy."

Bush has forced a battle.

Senators of goodwill cannot shrink from it.

Matthew Rothschild is the editor of The Progressive.

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