The Chosen Judge

Human Rights

On October 31, George W. Bush nominated Samuel Alito to the Supreme Court. On November 1, Esther Kaplan's book, With God on Their Side: George W. Bush and the Christian Right was released* in paperback. The timing could not have been more appropriate.

In her book, the former Nation editor profiles how the Bush White House has pandered to the Christian Right in ways large and small, from painting the war in Iraq as a holy crusade, to forcing the Grand Canyon National Park bookstore to sell a "creationist," but scientifically inaccurate book about the canyon.

Kaplan also uncovers the multitude of ways Christian groups have gained significant influence over the judiciary. She warns that, "[George W. Bush's] judicial appointees, combined with like-minded judges put in place by Bush's father and Ronald Reagan, have the potential to remake the federal courts as a reactionary force for generations to come. Protections for abortion and gays, and protections against state-sponsored religion, all of these could be eroded in the years ahead."

The future she writes about may have already begun.

Immediately after his nomination, Alito was touted by the Christian Right as the man who could deliver America from evil (or at least the man who can possibly overturn Roe v. Wade). He has received high praise and petitions of support from religious groups like Concerned Women for America, Focus on the Family, the Christian Coalition of America and Family Research Council.

Kaplan talked to AlterNet this week about what Alito's nomination means for the Christian Right.

In your book, you describe how Bush has inserted religion into almost every branch of his administration, from conducting Bible studies in the White House to directly funding religious organizations through his faith-based initiatives legislation. How has the president interjected his religious beliefs into the judicial branch?

Mainly by appointing judges who have pretty creative ideas about church-state separation. Alito is a pretty good example of that. He is someone who thinks that prayer belongs in the public schools and that religious displays are acceptable at public buildings. There are a whole host of judges that Bush has appointed to federal courts that take that attitude, judges like William Pryor, who used to show up at rallies defending "Roy's Rock," the five-ton Ten Commandments monument that Judge Roy Moore placed inside an Alabama courthouse, and who claims the U.S. Constitution, which never mentions God, is "rooted in a Christian perspective."

The Christian Right feels that the Supreme Court has gone too far in segregating faith from the public square, and that this balance needs to be righted. Of course, Supreme Court decisions in the 1960s that strengthened the church-state divide, such as banning mandatory prayer in public schools, helped to launch the Christian right as a social movement. Now they feel like their generations-old dream of overturning those decisions can be realized.

There has been a lot of attention to Alito's 1991 opinion in the Planned Parenthood v. Casey case, in which Alito supported legislation requiring women to notify their husbands that they are seeking an abortion. Last week a new frenzy followed the release of a 1985 opinion in which Alito said that "the Constitution does not protect a right to an abortion." With each new discovery about Alito, the debate over his nomination has increasingly become another battleground between pro-life and pro-choice activists. Do you think that the intense focus on abortion overshadows other, perhaps equally important, issues?

I think abortion rights are an incredibly important issue, so I think it is correct to make them central. However, I do think that Alito's decisions regarding the rights of workers are equally horrendous. When he was employed by the U.S. Department of Justice, he wrote an opinion that said employers could legally fire people living with AIDS because of a "fear of contagion, whether reasonable or not."

In other words, if you're afraid you will get AIDS by brushing against your HIV-positive employee in the hallway, even though your fear is patently absurd, you can legally fire that person.

If you look at his decisions on workplace issues, he almost universally decides in favor of the employers, whether it is a case regarding racial or sex discrimination. Philosophically, he is clearly not interested in protecting the rights of women, or minorities, or people living with AIDS, or disabled people. He is also clearly pro-corporate.

In a case against DuPont, where a woman was demoted after complaining of sexual harassment, Alito was the sole dissenting opinion -- he argued that if the employer had even a shred of evidence that they demoted her with cause, then she didn't deserve her day in court. (See the full text of the court's opinion.) In a case against Marriott, where a worker claimed she was denied a promotion due to racial bias, he proclaimed again that the plaintiff did not have the right to a trial. The majority on the court strongly disagreed, saying his restrictive interpretation of the law would eviscerate civil rights protections.

On the religious front, he has issued majority opinions that allow religious displays in public buildings and proselytizing groups -- such as the Good News Club -- access to public schools. And he wrote an opinion knocking down an anti-discrimination policy at a university after a Christian group on campus argued that it would restrict their right to condemn homosexuality. You get a strong sense that he wants to inject religion into government and that he doesn't support the spirit of equal rights at all.

What does this nomination mean to the Christian Right?

You cannot underestimate the extent to which the Christian Right feels like this is the culmination of their work. This is the moment they've been waiting for. Roe v. Wade was the single most important factor in the rise of the Christian Right as a social movement, and the brass ring has always been to stack the Supreme Court so they can overturn that decision. They have the Senate, they have the presidency. This really is their moment and they are going to pull out all the stops.

As Tony Perkins of the Family Research Council declared, they are "ready to rumble." But it's interesting to speculate, politically, do the Republicans really want Roe overturned? We forget that the majority of Republicans are pro-choice, as are the majority of Americans. It's always been convenient for the Republican Party to posture as pro-life and trust that the Supreme Court will uphold Roe, but that could change now, with major political consequences.

What, exactly, do Bush and his religious right supporters mean when they say they are in favor of a "strict constructionist"?

"Strict constructionist" is just a code term they have come up with. It is supposed to be the opposite of a judicial activist, but they don't mean it literally. First of all, they obviously support judicial activism if it is in favor of their agenda items. They'd like to see judges restrict marriage rights for same-sex couples, for example. And anyway, the term is absurd: If you were going to be a really strict constructionist, honoring the letter of the Constitution, you would have to choose a judge that supports slavery since slavery is written into the Constitution.

I think it is also code for striking down Roe v. Wade. Abortion rights are based on what was, at the time, a somewhat experimental theory -- the right to privacy. The Supreme Court decided privacy was a right that was implied by a number of other rights, and there is now a big fat stack of decisions that have built on that. For instance, the Supreme Court's decision to strike down Texas' sodomy laws was also based on the right to privacy.

The Christian Right is saying that that whole set of decisions that revolve around the right to privacy should be overturned, which would mean it is okay to ban abortions, it is okay to ban sodomy, and it is okay for the state to impose itself in very strong ways on people's private decisions. They are saying that if states across the country ban gay marriage, a court should not overturn that legislation because it is the "will of the people." A judge who overturns discriminatory laws, in their eyes, is "activist." It's a rubric that implies that even horribly discriminatory legislation should be upheld because it reflects "the will of the people."

If Alito is confirmed, the Supreme Court will be majority Catholic. Why is that, and what does that say to Bush's Evangelical base?

I wouldn't want to make too much of this. Certainly conservative Catholic law schools and the Catholic legal tradition have a much richer history. There are now conservative Evangelical law schools -- Jerry Falwell has started one -- so at some point down the road we are going to start having Evangelical judges with legal ideas that reflect Evangelical training. Maybe in 20 years we'll be seeing a whole generation of [Falwell's] Liberty University grads in the federal courts. That's certainly his explicit goal.

The pro-life movement as a whole actually has Catholic roots. The Evangelicals came into it late in the game. So the Catholic Church has a very long and rich history of making arguments against abortion and we are seeing the G.O.P. leadership tap into it.

If you were able to ask Alito one question during January's confirmation hearings, what would you ask?

I would ask him if he really believes that women, and people with AIDS, and gay people, and people of color are equal in the eyes of the law. I would ask him if he believes that they need every opportunity to challenge discrimination against them in court and if they have the right to control their own bodies and private lives. His record clearly implies otherwise.

*[Correction: With God on Their Side was released in paperback on Nov. 1, 2005. The original hardcover, titled With God on Their Side: How Christian Fundamentalists Trampled Science, Policy, and Democracy in George W. Bush's White House was published October 30, 2004. We regret the error.]

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