National Lawyers Guild opposes Alito nomination
November/December 2005

New York—George W. Bush has made good on his promise to nominate a Supreme Court justice in the mold of Antonin Scalia and Clarence Thomas. Third U.S. Circuit Court of Appeals Judge Samuel Alito, known as "Scalito" or "Scalia-lite," has a demonstrated record of opposing the civil rights of women, minorities, workers and consumers. If confirmed to the Supreme Court, Alito would move the Court dramatically to the right and threaten civil liberties for many years.

NLG President Michael Avery stated, "Judge Alito's record on the Third Circuit Court of Appeals is replete with examples of how his extremely conservative views have led to decisions that ignore the legitimate interests of women, families, people of color, consumers and working people. These decisions run contrary to established Supreme Court precedent and the will of the Congress."

His record demonstrates that Alito would erode abortion rights if provided with the opportunity. He voted in Planned Parenthood v. Casey in 1991 to uphold a Pennsylvania law that included a provision requiring women seeking abortion to notify their spouses. When the case reached the Supreme Court, the justices used it to reaffirm Roe v. Wade. Justice O'Connor wrote the decision, which struck down the state's spousal notification requirement. In his dissent in Casey, Chief Justice William Rehnquist quoted Alito's dissent from the lower court opinion.

Alito voted to scuttle Congress's intent by making it much harder for civil rights plaintiffs to prove sex and race discrimination. In one case, Alito's colleagues on the Third Circuit observed that the federal law prohibiting employment discrimination "would be eviscerated if our analysis were to halt where [Judge Alito] suggests."

Alito voted to invalidate part of the Family and Medical Leave Act, which guarantees most workers up to 12 weeks of unpaid leave to care for a loved one. The 2003 Supreme Court decision in Nevada v. Hibbs upheld the FMLA, essentially reversing a 2000 opinion by Alito which found that Congress had exceeded its power in passing the law .

Alito is highly technical with respect to enforcing contract law, and thus may not be supportive of consumer protections in contract law. This has shown up in his enforcement of consumer-unfriendly provisions, such as arbitration clauses. The National Lawyers Guild fears that it will likely show up in consumer-unfriendly clauses relating to purchased information goods (such as software, books, and DVDs) -- cases that will certainly come before the Supreme Court in the next five years. Unilateral enforcement of contracts is a significant problem for consumers.

Samuel Alito has also shown hostility to privacy rights by supporting the unauthorized strip searches of women and children who are not named in a search warrant. He voted to uphold the strip search of a mother and her 10-year-old daughter in Doe v. Groody in 2004. That vote drew harsh criticism from Bush's current Homeland Security Director Michael Chertoff, who was on the Third Circuit at the time. Certoff accused Alito of rubber-stamping police misconduct. Alito's excessive deference to executive power in Groody could signal his willingness to defer to the power of the executive in Bush's wars on Iraq, terror and civil liberties. This is cause for great concern.

In 2001, Alito authored a decision that struck down a public school district's policy that prohibited harassment against students based on their sexual orientation. The policy focused on harassment that might interfere with a student's educational performance or create an intimidating, hostile or offensive environment. But Alito ruled this policy was unconstitutional because it could cover "simple acts of teasing and name-calling."

Alito pandered to the gun lobby when he voted to strike down a federal law prohibiting the possession of machine guns. His position led Alito's colleagues to accuse him of disrespecting the considered decision of Congress by requiring it to "play 'Show and Tell' with the federal courts."

Bush succumbed to right-wing pressure by nominating Alito after it forced the more moderate Harriet Miers to withdraw her nomination. The National Lawyers Guild opposes Bush's choice of Samuel Alito for the Supreme Court and urges the Senate to reject it. If it becomes necessary, the Guild calls upon Senators to filibuster this nomination in order to defeat it.

The National Lawyers Guild, founded in 1937, comprises over 6,000 members and activists in the service of the people. Its national office is headquartered in New York and it has chapters in nearly every state, as well as over 100 law school chapters. The Guild has a long history of representing individuals whom the government has deemed a threat to national security, including helping expose illegal FBI and CIA surveillance, infiltration and disruption tactics (COINTELPRO) that the U.S. Senate "Church Commission" hearings detailed in 1975-76 and that led to enactment of the Freedom of Information Act and other limitations on federal investigative power. (

Locally, contact the National Lawyers Guild-Gainesville, at P.O. Box 2063, Gainesville, FL 32602,, 372-7356.

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