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November 4, 2005

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Volume 33
Issue 44

 
 
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Supreme Court: President Bush's nominates Alito to nation's highest court
Supreme Court: President Bush's nominates Alito to nation's highest court
'Alito's not the anti-Gay firebrand jurist that Scalia is...'

By Lisa Keen - SGN Contributing Writer

The early buzz on President Bush's third Supreme Court nominee signaled trouble: His nickname was "Scalito"- suggesting to some that he had a judicial bent similar to that of the high court's most anti-Gay member, Justice Antonin Scalia. And by all accounts, Federal Judge Samuel Alito Jr. was chosen to appease the Republican Party's most conservative supporters after they clamored loudly that the second nominee, Harriet Miers, was not conservative enough.

But while Alito has won the enthusiasm - and reportedly the endorsement - of some notoriously anti-Gay activists, he does not appear to be the anti-Gay firebrand jurist that is Scalia and that is so beloved by the radical right. Former law clerks and associates came quickly to his defense this week, saying the nickname "Scalito" was an insensitive moniker based on both jurists' Italian American heritage, not judicial philosophy. In various blogs, they have portrayed Alito as more reasonable than rabid and more likely to show empathy where Scalia would sling epithets.

And then there was this nugget from Wednesday's Boston Globe: As a senior at Princeton University in 1971, Alito chaired an undergraduate task force that "recommended the decriminalization of sodomy, accused the CIA and the FBI of invading the privacy of citizens, and said discrimination against Gays in hiring `should be forbidden'." The Globe found the report in the university's Seeley G. Mudd Manuscript Library and quoted its introduction, written by Alito, as stating, 'We sense a great threat to privacy in modern America. We all believe that privacy is too often sacrificed to other values; we all believe that the threat to privacy is steadily and rapidly mounting; we all believe that action must be taken on many fronts now to preserve privacy."

While some Gays may be cautious about reading too much into a 34-year-old statement which the nominee wrote as a college student, it still seems contrary to anything a young Scalia might have participated in writing. And then there is this, from last year:

In 2004, Alito penned a decision in Shore Regional High School v. P.S., which supported the efforts of the parents of a boy who was tormented by anti-Gay epithets to have the student transferred to another school. The Shore Regional case implicated a federal law that requires public schools provide students with disabilities with a "free appropriate public education." The boy's parents sought to force his school district to pay for his education at another's school district's high school, but the home school district balked, saying it would, instead, try to stop the bullying. A district court agreed.

In a 10-page opinion on behalf of the three-judge panel, Alito discussed the boy's difficulties in detail, noting that the verbal and physical harassment "began to cripple" the student. In a final paragraph, he concluded simply that the district court had failed to give appropriate deference to an administrative law judge's determination that testimony by special education experts justified the boy's transfer to another school district. The Alito decision ordered the school district to pay for the boy's education in a neighboring school district.

While that decision appears to demonstrate that Alito recognizes the impact of anti-Gay harassment, an earlier opinion muddles the picture. In 2001, in Saxe v. State College, he led a three-judge panel decision which struck down a policy adopted by the public school district for State College, Pennsylvania, to prevent anti-Gay harassment.

The policy was challenged by a member of the state board of education who represented two students who said they, as Christians, believed that homosexuality is a sin and that they had a right to speak out about that belief in school. The students challenged a policy against harassment -which included harassment based on sexual orientation, religion, disability, and other factors. They said the policy left them vulnerable to being punished for speaking out about their "religious beliefs" concerning homosexuality, for distributing "religious literature," or for "engaging in symbolic activities reflecting those beliefs."

Writing for the panel, Alito said that "`Harassing' or discriminatory speech, although evil and offensive, may be used to communicate ideas or emotions that nevertheless implicate First Amendment protections."

But the panel's primary concern with the policy appeared to be that its language was overbroad. For instance, it prohibited "any unwelcome verbal . . . conduct which offends . . . an individual because of" various personal characteristics. The decision faulted the policy for being so vague that it would seem to proscribe behavior or speech outside of school, as well as behavior or speech that had the intention of causing a disruption, whether it caused one or not.

Perhaps illustrating his more guarded approach to judicial conservatism, Alito did add to the Saxe opinion that he was not suggesting that all applications of anti-harassment policies were unconstitutional.

"Certainly, preventing discrimination in the workplace-and in the schools-is not only a legitimate, but a compelling, government interest," wrote Alito. "&We simply note that we have found no categorical rule that divests `harassing' speech, as defined by federal anti-discrimination statutes, of First Amendment protection."

Alito was also one of three judges in the Third Circuit who signed onto an opinion last year, Doe v. County, saying that a local health agency in Pennsylvania could not refuse to place foster children in a home where a child with HIV resided.

But despite the favorable rulings in Doe and Shore Regional, Lambda Legal Defense and Education Fund, which pressed the Doe case, said Alito's record raises some red flags for the organization. The Human Rights Campaign and National Gay and Lesbian Task Force faulted Alito's nomination because of the widespread perception that he was hand-picked by the radical right wing of the Republican Party. Log Cabin Republicans issued a statement saying it would study his record carefully.

As senators, journalists, and other interested parties sift through the 1,500 decisions Alito participated in while on the Third Circuit -300 of which he authored-other details concerning his record on Gay-related matters may surface. But the political artillery was being rolled out and positioned along party lines early on this week, primarily because of the widespread perception that the right-wing of the Republican Party forced Miers to withdraw her nomination because they did not trust her to be conservative enough on key hot button issues, including abortion and Gay civil rights.

There were ample non-political reasons piling up against the confirmation -both political and non-political. She had no judicial experience, no particular expertise in constitutional issues, and she had an attachment to the White House -as the president's chief counsel-that threatened to separation of the branches.

But speeches and position statements she made in Texas in the 1980s and 1990s included contradictory statements on abortion and Gay civil rights that troubled both ends of the political spectrum. In 1989, while running for Dallas City Council, she answered a Gay group's survey, indicating she believed Gay people should have equal rights but that she would oppose effort to repeal the state law prohibiting sex between consenting same-sex adults. On a questionnaire to the Eagle Forum in 1989, she said she could support a constitutional amendment banning abortion, but in a 1993 speech to a women's group, she said "self-determination" should govern the decision to have an abortion. In that same speech, she also stated that, "Legislating religion or morality we gave up on a long time ago."

News of the 1993 speech, coupled with the launch of two websites promoting the withdrawal of her nomination by conservative groups, appeared to turn the conservative tide solidly against Miers. Senate Majority Leader Bill Frist (R-Tenn.) reportedly informed the White House last week that there would not be enough votes to confirm Miers to the Supreme Court. Senate Minority Leader Harry Reid (D-Nev.) characterized her withdrawal as strictly political, saying, "History will show that the radical right wing of the Republican Party drove this woman's nomination out of town."

After so publicly celebrating their success in forcing Miers' withdrawal and replacement with a candidate they believe to be more reliably conservative, right-wing activists may be inclined to shrug off Alito's 1971 comments concerning Gay civil rights and privacy than they did Miers' 1993 comment about self-determination and legislating morality. But some legal activists have suggested they are reading too much anti-abortion sentiment into Alito's 1992 dissent in Planned Parenthood v. Casey. In that case, Alito said he did not believe it was an "undue hardship" to require a woman to notify her husband before getting an abortion. As the New York Times pointed out, "Judge Alito voted in support of the abortion rights side of the argument in three cases. And U.S. Senator Arlen Specter (R-Penn.) told reporters after meeting with Alito this week that Alito indicated he believes Supreme Court opinions that have been reaffirmed many -as the court's 1973 Roe v. Wade ruling has been- "deserve great respect."

The Supreme Court's most positive rulings on Gay civil rights are fairly recent ones -2003's Lawrence v. Texas, striking down sodomy laws, and 1996's Romer v. Evans, striking down laws based on animus to Gay people. These are the opinions that will likely be implicated when the Supreme Court takes up such issues as same-sex marriage.

Meanwhile, it appears likely that Justice Sandra Day O'Connor will still be on the bench at the end of November when the high court takes up a case to decide whether the federal government can force universities who receive federal funds to allow military recruiters on campus even though the military violates campus policies against sexual orientation discrimination.

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