Column: November spawns a monster

By Sam Harding-Forrester

President Bush’s right-wing supporters pulled off quite a coup last week. Having responded to Supreme Court nominee Harriet Miers with the kind of tantrum one expects from a hungry child presented with a plate of soggy tofu, they cheered on as their craven president served up precisely the replacement candidate they had angled for.

Samuel Alito, currently sitting on the 3rd Circuit Court of Appeals, boasts a 15-year judicial record that has famously earned him the nickname “Scalito” – a reference to Antonin Scalia, arguably the most conservative of the Supreme Court’s current justices. The comparison with Scalia, unfortunately, applies more to the content of Alito’s decisions than to the rhetorical style in which he expresses them. His consummately dull opinions are entirely devoid of the fire-and-brimstone invective that makes even Scalia’s most disturbing dissents such delightful additions to one’s toilet-side reading pile.

Alito’s record nonetheless reveals that he, like many conservative justices, has made a veritable tradition of defending states’ rights against the meddling interferences of both the federal government and individual citizens. In the course of his consistently conservative string of dissents on the 3rd Circuit Court, Alito has supported a prison’s authority to deny inmates under long-term segregation access to magazines and newspapers; rejected an innocent family’s request for a jury trial to determine whether police acted lawfully in handcuffing them on the ground at gunpoint; upheld a trial court decision rejecting the request of an employee alleging racial discrimination to cross-examine a critical witness; and scotched Congress’s power to ban the possession of machine guns.

Meanwhile, despite defiant bleatings from his feisty virago of a mother that the Catholic Alito “of course” opposes abortion, the judge reassured pro-choice senators in meetings last Tuesday by voicing his respect for the legal precedent set by Roe v. Wade. Even so, Alito’s much-cited decision to strike down a New Jersey law banning partial birth abortion in light of Supreme Court precedent reflected a necessary deference to the higher court’s findings, rather than a commitment to horizontal stare decisis. And even a respect for the basic precedent set by Roe v. Wade would not prevent Alito from rolling back abortion rights in specific cases.

Alito’s most bothersome piece of jurisprudence, in fact, is a triple-punch concoction of anti-abortion bias, borderline misogyny and trampled privacy rights. In 1991, he dissented from the 3rd Circuit Court’s decision in Planned Parenthood v. Casey, in which the majority rejected a Pennsylvania statute requiring a married woman to inform her husband before seeking an abortion. Alito’s dissent contended that the spousal notification requirement did not impose an “undue burden” on a wife considering an abortion, even though in some cases it could lead to an abusive response from the husband. Alito based his definition of “undue burden” on Justice Sandra O’Connor’s reading of that phrase in two prior Supreme Court cases – both of which involved girls required to notify their parents of prospective abortions, not adult women and their husbands.

Regardless of one’s position on abortion, the implicit misogyny of Alito’s decision is enough to raise concerns at the prospect of such a judge fulfilling his ambition, stated in his 1972 Princeton yearbook, “to eventually warm a seat on the Supreme Court.” The governmental patriarchy has not looked so disturbingly alive since Bush chose to sign the Partial Birth Abortion Ban Act of 2003 while surrounded by nine white male Senators and Cabinet members, all of them grinning in collusive approval as if watching some particularly satisfactory pornography.

O’Connor, whose seat Alito has been nominated to fill, would seem to agree. She shot down Alito’s dubious application of her “undue burden” standard in a decision on Casey the following year. “A state,” she explained, “may not give to a man the kind of dominion over his wife that parents exercise over their children.” Perhaps more than any other piece of evidence, this exchange suggests the profound impact Alito’s confirmation could have on a court in which O’Connor’s vote has long played a decisive role.

Sam Harding-Forrester is a senior in LAS. His column appears every Thursday. He can be reached at [email protected]