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Bush Picks Conservative Judge Samuel Alito Who Endorsed Abortion Restrictions for Supreme Court

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President Bush nominated federal appeals judge Samuel Alito Jr. to the Supreme Court Monday, just four days after Harriet Miers withdrew her nomination. The 55-year-old Alito is widely seen as a judicial conservative who has been nicknamed “Scalito” for his philosophical similarities to Justice Antonin Scalia. In 1991, Alito backed a Pennsylvania law that required women to inform their husbands before they sought an abortion. His support came in the form of a dissenting vote in the landmark case Planned Parenthood v. Casey. [includes rush transcript]

President Bush has nominated appeals Court Judge Samuel Alito for the U.S. Supreme Court. Alito is a former U.S. attorney who has been a judge for 15 years. He is considered a favorite of the conservative movement and will replace retiring Justice Sandra Day O’Connor on the bench.

The choice of Alito comes after Harriet Miers, withdrew her nomination Thursday after coming under intense criticism from the Christian Right and many Republican senators who questioned her qualifications and record.

Unlike Miers, who has never been a judge, Alito has been a strong conservative voice on the 3rd U.S. Circuit Court of Appeals in Philadelphia since former President George H.W. Bush seated him there in 1990.

He has been dubbed “Scalito” or “Scalia-lite” by some lawyers because his conservative judicial philosophy invites comparisons to Supreme Court Justice Antonin Scalia.

In 1991, Alito wrote the lone dissenting opinion in Planned Parenthood v. Casey, a case striking down a Pennsylvania law that imposes numerous restrictions on women seeking abortions.

The law, among other things, required physicians to advise women of the potential medical dangers of abortion and tell them of the alternatives available. It also imposed a 24-hour waiting period for abortions and barred minors from obtaining abortions without parental consent. In that same ruling, the panel struck down a single provision in the law requiring women to notify their husband’s before they obtained an abortion. Alito dissented from that part of the decision. He wrote, “The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands” knowledge because of perceived problems — such as economic constrains, future plans, or the husbands” previously expressed opposition — that may be obviated by discussion prior to abortion.”

The case ultimately reached the Supreme Court, which upheld the appeals court decision, disagreed with Alito and also used the case to reaffirm its support for Roe v. Wade, the 1973 decision legalizing abortion.

Alito has also been criticized by women’s rights organizations for his 1996 dissent in a sex discrimination case, Sheridan v. Dupont. In that case, he argued that Third Circuit that had made it too easy for discrimination complaints to reach a jury trial.

Alito has been consistently supportive of conservative views in cases involving issues of church and state. He wrote a majority opinion in ACLU v. Schundler, holding that a city’s holiday display that included a creche and menorah did not violate the establishment clause of the First Amendment.

Last night, Senate minority leader Harry Reid said Alito “is not one of the names that I’ve suggested to the president. In fact, I’ve done the opposite. I think it would create a lot of problems.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We’re joined right now by Seth Rosenthal, Legal Director of the Alliance for Justice, and in our New York studio by Donna Lieberman. She is Executive Director of the New York Civil Liberties Union. We welcome you both to Democracy Now! Donna, I want to begin with you on this case — well, begin with Planned Parenthood v. Casey.

DONNA LIEBERMAN: Well, Planned Parenthood v. Casey was a watershed for reproductive rights. On the one hand, it reaffirmed the essential holding of Roe v. Wade protecting women’s right to choose as a matter of privacy, but it nonetheless sustained some limits on women’s access to abortion, like waiting periods and what we call biased counseling mandates. But the court unequivocally rejected the mandate in the law for spousal consent before a woman could get an abortion, and Judge Alito had previously sustained that. That is so out of the mainstream of jurisprudence as to really put women’s right to choose in jeopardy. And I think that —

AMY GOODMAN: Explain how it’s out of the mainstream.

DONNA LIEBERMAN: Well, if a woman — one of the core points about the protection of the right to choose is that the decision about having an abortion is a decision about a woman’s health, it’s about her future, it’s about the responsibilities that she is going to have forever and ever and ever. And if you can’t make a decision about what happens to your body without your husband’s permission, well, then do you have equal rights as a member of our society? And Justice Alito would say no. So, I think that we see that right — if, in fact, he is confirmed there will be four votes really to overturn Roe v. Wade.

Now, I have to say that the Civil Liberties Union will not normally take a position. We will research his opinions. We will research his records, his record in the whole array of cases, and raise issues that have to be addressed by the Senate in reviewing his qualifications. But this isn’t about whether somebody is a nice guy. This isn’t about whether he has a good sense of humor. It isn’t whether he is smart or well prepared only — those are important — but it’s about whether in fact Americans are going to enjoy government — constitutional protection for fundamental rights as we have thought we could for years and years.

AMY GOODMAN: Seth Rosenthal of the Alliance for Justice, your response to this specifically and overall, Judge Alito’s record?

SETH ROSENTHAL: Well, you know, the response, I guess, more generally is that, you know, the right wing was howling over the nomination of Harriet Miers, because they didn’t think that she sort of had the ideological purity that they were demanding. She wasn’t a proven movement conservative. Of course, she may have turned out that way, but she didn’t have a record showing that she was. And so they were disappointed with the nomination, and they torpedoed it. Now, I mean, you go to the blogs and they’re absolutely giddy about the nomination of Samuel Alito, and that’s precisely because he has a record showing that he is a movement conservative, somebody who will move the court definitively to the right, particularly given that he is replacing Justice Sandra Day O’Connor who has been a pivotal swing vote on a number of issues, as conservative as she is.

And one of the things — I guess abortion is obviously a key issue, and it is an issue that is probably at the forefront of everyone’s mind, but if you look at Judge Alito’s record in its entirety, I mean, he sort of marches along to the conservative drumbeat on just about every single issue. And two issues, I guess, that I’d like to bring to your listenership’s attention are, one, Congress’s authority to pass individual protections for all of us, which has been under assault for the last decade. Congress passes laws, a number of laws, under what’s called its Commerce Clause power. Its Commerce Clause power has given rise to worker protections like the minimum wage and maximum hour laws and occupational safety and health laws, has allowed Congress to prohibit pollution by passing the Clean Air and Clean Water Acts. It has allowed Congress to prohibit discrimination, not just on the basis of race, but on the basis of age, disability, and gender.

All of these things, and all of these things could be thrown into jeopardy if the Supreme Court starts to draw back on what it has previously said, Congress can do under its Commerce Clause authority. And Judge Alito dissented in a case in 1996 that raises some real concerns. He said that Congress did not have the authority under its Commerce Clause powers to prohibit the possession of machine guns. That was a dissent. The majority accused him of, quote, playing — of requiring Congress and the President, the elected branches of government, to, quote, “play show and tell with the federal courts.”

For conservatives who have long complained about judicial activism and who talk about judicial restraint, Judge Alito’s record betrays anything but restraint. Here is a guy who in the words of Jeff Rosen, a legal commentator who actually strongly supported the nomination of John Roberts, he says that Judge Alito’s record displays a troubling lack of respect for Congress. So that’s one area.

Another area, which is very important to the Bush administration is executive power. Obviously, it has been pursuing its war on terror, and it has tried to come up with of a number of limitations on the rights of people it has detained in connection with the war on terror, and Judge Alito, former U.S. Attorney — former federal U.S. Attorney for the District of New Jersey has sort of gone overboard in giving at least the police the authority to conduct intrusive searches on people who are not even the subject of arrest warrants; two decisions he dissented on those grounds. And in one of those decisions, current Department of Homeland Security head, Michael Chertoff, who was also on the Third Circuit at the time strongly criticized Judge Alito’s approach as being a rubberstamp approach to police misconduct. So, those are two additional areas over and above abortion that I think people need to start paying attention to.

AMY GOODMAN: Well, we are talking to Seth Rosenthal of Alliance for Justice; Donna Lieberman, New York Civil Liberties Union. When we come back from our break we’ll hear President Bush make the nomination of Judge Alito to be Associate Justice of the Supreme Court.


AMY GOODMAN: We turn now to President Bush nominating Justice Samuel Alito today for U.S. Supreme Court.

PRESIDENT GEORGE W. BUSH: Early in his career, Sam Alito worked as a federal prosecutor and handled criminal and civil matters for the United States. As assistant to the solicitor general, he argued 12 cases before the Supreme Court and has argued dozens of others before the federal courts of appeals. He served in the Justice Department’s Office of Legal Counsel providing constitutional advice for the President and the executive branch. In 1987, President Ronald Reagan named him the United States Attorney for the District of New Jersey, the top prosecutor in one of the nation’s largest federal districts, and he was confirmed by unanimous consent by the Senate. He moved aggressively against white-collar and environmental crimes and drug trafficking and organized crime and violation of civil rights.

In his role, Sam Alito showed a passionate commitment to the rule of law, and he gained a reputation for being both tough and fair. In 1990, President Bush nominated Sam Alito, at the age of 39, for the United States Court of Appeals for the 3rd Circuit. Judge Alito’s nomination received bipartisan support, and he was again confirmed by unanimous consent by the United States Senate. Judge Alito has served with distinction on that court for 15 years and now has more prior judicial experience than any Supreme Court nominee in more than 70 years.

Judge Alito’s reputation has only grown over the span of his service. He has participated in thousands of appeals and authored hundreds of opinions. This record reveals a thoughtful judge who considers the legal matter — merits carefully and applies the law in a principled fashion. He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.

In the performance of his duties, Judge Alito has gained the respect of his colleagues and attorneys for his brilliance and decency. He’s won admirers across the political spectrum. I’m confident that the United States Senate will be impressed by Judge Alito’s distinguished record, his measured judicial temperament and his tremendous personal integrity. And I urge the Senate to act promptly on this important nomination so that an up or down vote is held before the end of this year.

AMY GOODMAN: That is President Bush nominating Samuel Alito to be the next U.S. Associate Justice of the Supreme Court. Judge Alito was there with his family to accept the nomination. Of course, the Congress has yet to say — the Senate Judiciary Committee — when they will hold hearings in the confirmation process. We turn now to Judge Alito accepting President Bush’s nomination.

JUDGE SAMUEL ALITO: Thank you very much, Mr. President. I am deeply honored to be nominated to serve on the Supreme Court, and I am very grateful for the confidence that you have shown in me. The Supreme Court is an institution that I have long held in reverence. During my 29 years as a public servant, I’ve had the opportunity to view the Supreme Court from a variety of perspectives: as an attorney in the Solicitor General’s Office, arguing and briefing cases before the Supreme Court; as a federal prosecutor; and most recently, for the last 15 years, as a judge of the Court of Appeals. During all of that time, my appreciation of the vital role that the Supreme Court plays in our constitutional system has greatly deepened.

I argued my first case before the Supreme Court in 1982, and I still vividly recall that day. I remember the sense of awe that I felt when I stepped up to the lectern. And I also remember the relief that I felt when Justice O’Connor, sensing, I think, that I was a rookie, made sure that the first question that I was asked was a kind one. I was grateful to her on that happy occasion, and I am particularly honored to be nominated for her seat.

My most recent visit to the Supreme Court building was on a very different and a very sad occasion. It was on the occasion of the funeral of Chief Justice William Rehnquist. And as I approached the Supreme Court building with a group of other federal judges, I was struck by the same sense of awe that I had felt back in 1982, not because of the imposing and beautiful building in which the Supreme Court is housed, but because of what the building and, more importantly, the institutions stand for: our dedication as a free and open society to liberty and opportunity and, as it says above the entrance to the Supreme Court, “equal justice under law.”

Every time that I have entered the courtroom during the past 15 years, I have been mindful of the solemn responsibility that goes with service as a federal judge. Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system. And I pledge that, if confirmed, I will do everything within my power to fulfill that responsibility.

AMY GOODMAN: Justice Samuel Alito accepting the nomination of President Bush for him to be U.S. Associate Justice, Associate Justice of the Supreme Court, replacing Sandra Day O’Connor. Kay Daley, President of the Conservative Coalition for a Fair Judiciary, said the President has made an excellent choice today, which reflects his commitment to appoint judges in the mold of Scalia and Thomas. Final comment, Seth Rosenthal of Alliance for Justice.

SETH ROSENTHAL: Well, I think that comment probably says it all. He, Judge Alito, has earned the nickname “Scalito” because of the resemblance that his jurisprudence bears to that of Justice Scalia. When I think Jonathan Turley was actually on Katie Couric’s show this morning saying, 'There will be nobody on this court, if Judge Alito is confirmed, who is to the right of him.' And Katie Couric said, 'Well, does that include Justice Scalia?' And he said, 'Well, it will probably be a race to the finish, but one or the other will beat the other by a nose.' So, that gives you a sense of where he’s going to be, and that explains why the right wing is so happy now.

AMY GOODMAN: Donna Lieberman of the New York Civil Liberties Union.

DONNA LIEBERMAN: This is an appointment that will potentially change the face of American constitutional values for years to come. And it’s one that the Senate has to look at very, very carefully. It’s not about whether he has a law degree from a good school or whether he’s got lots of experience or has written articulate opinions; it’s about the values that our country has cherished and must continue to cherish for years to come. The Senate has the obligation to question him carefully and thoroughly to determine whether he is in the mainstream of American rights and values or whether he is on the fringe. Clearly, the President has played to his base here. He is a president under fire, who has chosen to do that, rather than to nominate somebody who is in the mold of Sandra Day O’Connor, who is more of a consensus builder, and the Senate will have to respond accordingly.

AMY GOODMAN: Donna Lieberman of the New York Civil Liberties Union and Seth Rosenthal of the Alliance for Justice, thank you for both being with us.

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