Opposition to the Confirmation of Samuel A. Alito, Jr.

Recipient: Senate Judiciary Committee

The Honorable Arlen Specter, Chair
The Honorable Patrick J. Leahy, Ranking Member
Senate Committee on the Judiciary
Dirksen Senate Office Building
Room SD-224
Washington, DC 20510

Dear Chairman Specter and Ranking Member Leahy:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we write to express our opposition to the confirmation of Judge Samuel A. Alito, Jr. as Associate Justice of the Supreme Court of the United States. The Supreme Court’s jurisprudence over the past 50 years has often served to protect the fundamental constitutional rights of all Americans. Judge Alito’s decisions, however, often stand in direct contrast to that jurisprudence and embrace a much more limited and narrow view of constitutional rights and civil rights guarantees. A careful examination of Judge Alito’s record reveals a history of extremely troubling decisions in the areas of civil rights, civil liberties, and fundamental freedoms, decisions that undermine the power of the Constitution to protect the civil and human rights of all Americans. LCCR believes that Judge Alito’s record does not demonstrate a commitment to protecting fundamental rights and, therefore, urges the Senate to reject his nomination.

The Supreme Court is the final arbiter of our laws, and its rulings can drastically impact the lives, liberties, and rights of all Americans. As such, LCCR believes that no individual should be confirmed to the Supreme Court unless he or she has clearly demonstrated a strong commitment to the protection of civil rights and liberties, human rights, privacy, and religious freedom. In these areas, the evidence reviewed to date shows that Judge Alito’s record is highly troubling. His overall record reveals a jurist whose views are well out of the judicial mainstream on a number of issues, including the evidentiary standards in discrimination lawsuits, the constitutional safeguards afforded those within our criminal justice system, the power of Congress to protect all Americans, and the ability of those facing persecution to get asylum in the United States.

Additionally, LCCR finds very disturbing the statements Judge Alito made in his 1985 application to be the Reagan administration’s Deputy Assistant Attorney General in the Office of Legal Counsel. Judge Alito singled out his work to restrict affirmative action and limit remedies in racial discrimination cases as areas that he was “particularly proud” of and stated unequivocally that he enjoyed advancing the positions of the administration and personally believed in those positions. Although he now claims that these were just words on an application, his record as a jurist reveals something different. The ideological views taken in the application and during his time in the Reagan administration are exemplified throughout his judicial decisionmaking, where he routinely favors a reading of statutory and constitutional law that limits the rights of individuals and the power of Congress to protect those individuals. Further, Judge Alito’s self-professed commitment to, and personal involvement in, legal positions of the Reagan administration that sought to restrict affirmative action and the remedies that courts can order in cases of proven discrimination raise serious concerns about his commitment to core constitutional principles such as equal protection. The following is a summary of the reasons for LCCR’s opposition:

Judge Alito’s Attempts to Undermine Key Anti-Discrimination Laws. Judge Alito’s record raises serious concerns about whether he would be a strong enforcer of our nation’s civil rights laws. Particularly problematic are his decisions in the areas of race, gender, disability and age discrimination. His decisions show a pattern of advancing limited readings of civil rights laws, which place unreasonable burdens on civil rights plaintiffs and make it harder to prove discrimination. He has construed Title VII of the Civil Rights Act of 1964 and other key civil rights laws narrowly so as to place an increased evidentiary burden on plaintiffs before they can have their day in court, often provoking sharp criticism from his colleagues on the Third Circuit.

In Bray v. Mariott Hotels, a hotel employee filed suit after her employer denied her a promotion, a decision which she alleged was motivated by racial bias. While the Third Circuit ruled that she had established a prima facie case of racial discrimination and was entitled to take her case to trial, Judge Alito dissented. His dissenting opinion called for an evidentiary standard that would have, according to the majority, imposed a burden on victims of discrimination that would have been almost impossible to meet. In fact, the majority strongly criticized the dissent, stating “Title VII would be eviscerated if our analysis were to halt where the dissent suggests.” Judge Alito’s dissent in Sheridan v. E.I DuPont de Nemours and Co. , a gender discrimination case, is another example where his analysis would limit access to the courts for victims of discrimination. In that case, Sheridan sued for sex discrimination when after a decade of service to the Hotel du Pont, her employer failed to promote her to a higher position. Sheridan had been steadily promoted during her tenure at the Hotel du Pont from waitress to “head captain.” The majority found, in line with most other circuits and the Supreme Court, that she had presented enough evidence to allow the case to go forward to trial, but Judge Alito was the lone dissenter in the en banc decision. Judge Alito’s application of the law would have effectively raised the evidentiary standard and required more evidence from the victim before she would be permitted to take her case to court. As the majority noted in Bray, such a standard would make it increasingly difficult for plaintiffs not only to prove discrimination, but to have access to the courts to do so.

In a case involving the rights of disabled Americans, Judge Alito again demonstrates this pattern. In Nathanson v. Medical College of Pennsylvania, a prospective medical student filed suit under the Rehabilitation Act of 1973, claiming that the school failed to provide accommodations for a back injury. The trial court granted summary judgment in favor of the school, but a Third Circuit panel reversed with respect to the Rehabilitation Act claim because there were different factual assertions that required a jury trial. Judge Alito dissented, arguing that the plaintiff had not shown that the school failed to provide her with adequate accommodations. His colleagues noted that, under the standards he laid out in a dissent, “few if any Rehabilitation Act cases would survive summary judgment.”

Judge Alito’s commitment to enforcing our nation’s anti-discrimination laws is also called into question by his active participation, during his tenure in the Reagan administration, in cases that sought to restrict affirmative action and limit the remedies available for discrimination. As Assistant to the Solicitor General, Judge Alito signed on to several amicus briefs that argued for restricting remedies for discrimination and sought to make it more difficult to order relief in cases where discrimination was proven. These arguments were rejected by the Supreme Court. However, these cases are a clear indication of Judge Alito’s allegiance to an ideology that is later manifested consistently throughout his rulings as a judge on the Third Circuit, where he routinely seeks to make it harder for victims of discrimination to have their day in court and increases the evidentiary burdens on plaintiffs trying to prove discrimination.

Judge Alito’s Zealous Efforts to Limit Congressional Authority in Favor of “States’ Rights.” Judge Alito’s record demonstrates a disturbing pattern of favoring “states’ rights” over protecting the rights of all Americans. During his tenure on the Third Circuit, he has engaged in an excessively narrow reading of the Commerce Clause and an excessively broad reading of state sovereign immunity under the 11th Amendment. In fact, his decisions show that he would go even further than the current Supreme Court in undercutting Congress’ ability to protect Americans. In United States v. Rybar,9 the Third Circuit upheld the conviction of a firearms dealer for the sale of outlawed machine guns, joining six other circuits in finding the federal law banning the transfer or possession of machine guns10 to be a valid exercise of Congressional authority under its power to regulate interstate commerce. But Judge Alito dissented, arguing that the Supreme Court’s recent decision in United States v. Lopez 11, which invalidated Congress’ gun free school zone ban, made clear that Congress did not have such power. The majority distinguished Lopez because it dealt with a small geographic area – school zones – whereas the law at issue in Rybar applied nationwide. Judge Alito would have taken Lopez a step beyond to place further restrictions on Congress’ power to use its Commerce Clause authority to protect Americans from machine gun violence. Judge Alito’s extraordinarily narrow perspective of Congressional power expressed in his Rybar dissent raises serious concerns about whether he will uphold major and historically effective pieces of civil rights infrastructure such as the ban on discrimination in places of employment or public accommodation in the Civil Rights Act of 1964, and whether he will hold a restrictive view of Congress’ power to move the country forward with additional civil rights laws such as hate crimes and non-discrimination legislation.

In Chittester v. Department of Community and Economic Development,12 Judge Alito’s majority opinion would have denied a state employee the benefits of the Family and Medical Leave Act of 1993 (“FMLA”).13 In this case, a state employee had sued after being fired for taking medical leave that had been approved pursuant to FMLA. A jury ruled in Chittister’s favor, but the trial court reversed the verdict on the ground that the state was immune from suit under the 11th Amendment. On appeal, Judge Alito affirmed the ruling, claiming that Congress had not abrogated state sovereign immunity. The Supreme Court later reached an opposite conclusion from Judge Alito’s holding in its 2003 decision in Nevada Department of Human Resources v. Hibbs.14 The Court held that state employees could in fact sue their employers under the FMLA, a decision that has subsequently been read by some courts to validate the constitutionality of the entire law. Judge Alito’s decision in Chittister, and his willingness to undermine a critical federal protection for workers, serves as strong evidence that he would use the law to put “states’ rights” ahead of the rights of ordinary Americans.

Judge Alito’s Willingness to Undercut Fundamental Due Process and Equal Protection Rights. In cases involving criminal justice matters such as the Fourth Amendment, habeas corpus and the right to effective assistance of counsel, Judge Alito has shown a strong tendency to defer to police and prosecutors at the expense of the constitutional rights and civil liberties of individual Americans. In Doe v. Groody,15 Judge Alito argued in his dissent that police officers who conducted strip searches not authorized by their warrant were entitled to qualified immunity. The majority concluded, in a decision authored by Judge Chertoff, that strip searches of the suspect’s wife and ten-year-old daughter went well beyond the police’s warrant to search the home of a suspected drug dealer and that the officers were therefore not entitled to claim qualified immunity as a defense to the invasion of privacy claim. As Judge Chertoff noted, holding otherwise would “transform the judicial officer into little more than the cliché ‘rubber stamp.’”16 Judge Alito in criticizing the majority for what he called a “technical and legalistic” ruling in favor of the plaintiffs,17 would have deferred authority to the police to decide who could be searched and therefore, would have given the officers immunity for invading the privacy rights of the wife and daughter.

Judge Alito’s dissent in Baker v. Monroe Township,18 also illustrates his expansive reading of search warrants to give law enforcement extreme deference. In this case, a woman and her children were searched as they were entering premises that were the subject of a search warrant. The search warrant specified a location but there were no names included on the warrant, which led the majority to conclude that the warrant was deficient under the requirements of the Fourth Amendment. Judge Alito, instead of finding the warrant lacking, rationalized that the lack of particularity allowed the officers more leeway to search anyone on the premises.

Judge Alito’s record also reveals a distressing tendency to deny the habeas corpus claims of those in the criminal justice system. In Rompilla v. Horn,19 Judge Alito held that in the sentencing phase of a capital murder case, the failure of a defense attorney to investigate and present mitigating evidence, including the defendant’s traumatic childhood, alcoholism, mental retardation, cognitive impairment and organic brain damage, did not amount to ineffective assistance of counsel in violation of the Sixth Amendment. His ruling was decried as “inexplicable” by the dissent20 and was overturned by the Supreme Court,21 which noted that some of the mitigating evidence was publicly available in the very courthouse in which the defendant was tried.22 Justice O’Connor concurred in reversing Judge Alito’s ruling, describing the defense attorney’s performance as “unreasonable.”23

Judge Alito’s dissent in Smith v. Horn 24 would have denied the habeas claims of a death row inmate. Judge Alito concluded that a jury instruction regarding the defendant’s guilt, which the majority found the jury could have reasonable misunderstood, did not amount to a constitutional violation. In a subsequent case, Riley v. Taylor,25 Judge Alito did not find a constitutional violation in the prosecution’s apparent use of peremptory challenges to exclude black jurors from a death penalty case involving an African-American defendant. His dissent in this case illustrates a disregard for the impact of racially motivated peremptory jury strikes on African- American defendants. The majority had relied, in part, on statistical data to conclude that black jurors had been excluded, but Judge Alito took issue with the use of statistics, questioning the exclusion of black jurors as a statistical oddity and comparing it to the fact that five of the last six U.S. Presidents had been left-handed. His comments drew a sharp rebuke from the majority, who said that “[t]o suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants.”26

Judge Alito’s Troubling Views on Immigrant Rights. Judge Alito has often ruled against individuals who are seeking asylum in the United States even where evidence shows that they have been or would have been persecuted in their own countries. In Chang v. INS,27 Judge Alito dissented from the court’s grant of asylum for a Chinese engineer who claimed he would face persecution if returned to his own country. Judge Alito found no reason to reverse the INS denial of asylum despite the fact that Chang had presented evidence that his wife and son already faced persecution and he was threatened with jail if he returned to China. Similarly, in Dia v. Ashcroft,28 Judge Alito dissented from the majority opinion granting asylum to Dia, an immigrant from the Republic of Guinea whose house had been burnt down and wife raped in retaliation for his opposition to the government. The majority noted that the immigration judge seemed to be searching for ways to deny asylum and find fault with the credibility of Dia. Judge Alito’s dissent pushed for a higher standard requiring that no immigration judge’s decision be overruled unless “no reasonable adjudicator” would have found for the government.29 The majority criticized Judge Alito, noting that his standard would “gut the statutory standard” and “ignore our precedent.”30

Judge Alito has also pushed for expansive readings of the law in deportation matters to the detriment of deportees. In Lee v. Ashcroft 31, Judge Alito dissented from the court’s decision that a false tax return is not an aggravated felony requiring deportation. The court reasoned that Congress only intended tax evasion to be a deportable offense, but Judge Alito disagreed and argued that filing a false tax return also qualified. The majority noted that ambiguity in the law should be resolved in favor of the deportee and that Judge Alito’s interpretation was grounded in “speculation.”32 In Sandoval v. Reno,33 Judge Alito’s dissent would have construed the Antiterrorism and Effective Death Penalty Act to strip the federal courts of their ability to hear habeas corpus claims from aliens in custody challenging deportation orders. The Supreme Court rejected this position, in INS v. St. Cyr,34 because doing so would raise serious constitutional questions.

The stakes could not be higher. The Supreme Court is closely divided on cases involving many of our most basic rights and freedoms. Judge Alito has been nominated to fill the seat of retiring Justice Sandra Day O’Connor, who was the crucial deciding vote in so many of those cases. The American people want and deserve to know that any new Supreme Court justice will be committed to protecting individual rights, and will put our freedoms ahead of any political agenda. Unfortunately, Judge Alito’s record not only fails to show such a commitment, but also raises serious doubts. For that reason, we must oppose his confirmation as Associate Justice.

Thank you for your consideration. If you have any questions, please feel free to contact LCCR Deputy Director Nancy Zirkin at (202) 263-2880 or LCCR Counsel Rob Randhava at (202) 466- 6058. We look forward to working with you.

Sincerely,
Dr. Dorothy I. Height, Chairperson
Wade Henderson, Executive Director

1 Some organizations in the Leadership Conference have not opposed Judge Samuel Alito’s confirmation to
the Supreme Court.

2 110 F.3d 986 (3d Cir. 1997).

3 Bray, 110 F.3d at 993.

4 100 F.3d 1061 (3d Circ. 1996).

5 926 F.2d 1368 (3d Cir. 1991).

6 Nathanson, 926 F.2d at 1387.

7 See, Brief for the Equal Employment Opportunity Commission in Local 28 v. EEOC, No. 84-1656 (Dec. 9, 1985);
Brief for the United States as Amicus Curiae, Local 93, International Association of Firefighters, AFL-CIO, C.L.C.
v. City of Cleveland, et. al., No. 84-1999 (July 24, 1985); Brief for the United States as Amicus Curiae, Wygant v.
Jackson Board of Education, No. 84-1340 (June 25, 1985).

8 See, Local 28 of the Sheet Metal Workers’ International Ass’n v. EEOC, 478 U.S. 421 (1986); Local Number 93,
International Association of Firefighters, AFL-CIO, C.L.C. v. City of Cleveland, 478 U.S. 501 (1986); Wygant v.
Jackson Board of Education, 476 U.S. 267 (1986).

9 103 F.3d 273 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997).

10 18 U.S.C. § 922(o).

11 514 U.S. 549 (1995).

12 226 F.3d 223 (3d Cir. 2000).

13 P.L. 103-3 (107 Stat. 6), approved February 5, 1993.

14 538 U.S. 721 (2003).

15 361 F.3d 232 (3d Cir. 2004).

16 Doe, 361 F.3d at 243.

17 Doe, 361 F.3d at 247 (Alito, J., dissenting).

18 50 F.3d 1186 (3d Cir. 1995).

19 355 F.3d 233 (3d Cir. 2004).

20 Rompilla, 355 F.3d at 274 (Sloviter, J., dissenting).

21 Rompilla v. Beard, 125 S. Ct. 2456 (2005).

22 Rompilla, 125 S. Ct. at 2464.

23 Rompilla, 125 S. Ct. at 2470 (O’Connor, J., concurring).

24 120 F.3d 400 (3d Cir. 1997).

25 277 F.3d 261 (3d Cir. 2001).

26 Riley, 277 F.3d at 292.

27 119 F.3d 1055 (3d Cir. 1997).

28 353 F.3d 228 (3d Cir. 2003).

29 Dia, 353 F.3d at 262.

30 Id. at 251 n.22.

31 368 F.3d 218 (3d Cir. 2004).

32 Lee, 368 F.3d at 225 n.11.

33 166 F.3d 225 (3d Cir. 1999).

34 533 U.S. 289, 310 (2001).