In the case of Judge Samuel Alito, and George W. Bush’s bid for the conservative jurist’s appointment and Senate confirmation to the U.S. Supreme Court, there are some very important issues which should be closely scrutinized. While it is true that the U.S. Constitution confers the power of federal judicial appointment on the President, it goes without saying that the Framers’ intent was for the President to choose a candidate for the highest court in the land who would be bias free and advance the greater good for the greatest number of American citizens, not the President’s personal political agenda.
If Judge Alito is confirmed, his replacement of Justice Sandra Day O’Connor would tip the court toward a consistent neo-conservative majority, much as the court was in 1857, under the leadership of Chief Justice Roger B. Taney, when the case of Dred Scott vs. Sandford resulted in the Dred Scott Decision, which declared that all black people in slavery were not citizens, but the property of their owners. The Supreme Court, at that time in history, believed it was properly following the doctrine of stare decisis, or the basis of English common law that the previous legal decision must stand. But contemporary history denotes that the forces of sectionalism within the Union, at that critical juncture in a political climate smacking of war, were a great influence upon the Taney Court. In other words, the personal views of a majority of the justices played a more dynamic role on the decision of the court than did stare decisis.
Judge Alito’s academic credentials are certainly impeccable, as are the credentials of thousands of other lawyers and jurists throughout the nation. But it’s not academic prowess alone that makes a person worthy to be a candidate for the U.S. Supreme Court. Judge Alito has had as many detractors as proponents during the confirmation hearings, who have made their allegations and testimonials for and against the controversial jurist before the Senate Judiciary Committee. From what I’ve heard, those against the confirmation have cited a number of specific appellate decisions which show Alito’s bias toward expanded government and police powers, and a diminished right of constitutional privacy for women and minorities.
They have also shown specific reason to believe that Judge Alito is not being honest and forthcoming with the senate committee, that there have been instances in his background of extreme bias toward the issues of abortion, women’s rights, voting rights, and the socio-legal rights of all minorities. Those who have favored him in their testimonies, especially those lawyers who have clerked for him in previous years, have alluded to his good character, his unbiased nature, and his brilliant scholarly approach to judicial review. They, however, have spoken with sparkling generalities, avoiding juridical specifics.
In this essay, I could elaborate on a number of negative issues pertaining to Judge Alito. But the one that stands out to me as the most flagrant, and which casts the most doubt on his character, was his affiliation with the Princeton University group CAP, or “Concerned Alumni of Princeton,” an ultra-conservative campus organization that actively bemoaned the impact of co-education and affirmative action. Alito graduated from Princeton in 1972, and university records show that he became a member of CAP that particular year. As to what Alito did during his membership, the records are not clear; but his claim of not remembering his association with the campus action group, comparable, perhaps, to the SDS or “Students for a Democratic Society”, is much less than clear, especially denoting Alito’s uncanny ability to recall minute details of the cases on which he ruled as an appellate judge fifteen years later.
I graduated from the University of Texas at Tyler in 1980 and can recall all of my campus affiliations, especially those which had great social impact on university policy. For some reason, I see Judge Alito’s shoulder shrugging about his affiliation with CAP much the same as what occurred in the case of a prominent West German lawyer who was being considered for a judgeship by German Chancellor Konrad Adenauer and a committee of German legislators in 1960. It was a fact that the lawyer had become wealthy as an industrialist during the period of the Third Reich, and the reign of Hitler, and records showed that he had been a member of the Nazi Party for a short time. Yet, the lawyer shrugged his shoulders during the confirmation hearings and said that he could not remember anything he actually did with the Nazis. Was he to be believed? Conrad Adenauer immediately withdrew his sponsorship of the man when he found out that he was a former Nazi and quickly separated himself from him socially.
I’ve also noticed something else about Judge Alito that causes me great concern. He has not used “yes” or “no” to answer any questions during the confirmation hearings. That was a rule set down long ago by a society of Greek sophists. It was a rule of sophistic dialogue, the unpopular method condemned by Socrates, used by ancient Greek lawyers to confuse the truth. Sophistry, it was claimed, was the means of altering the truth to make something as dark as sin appear as white and pure as the driven snow. And the first rudiment of sophistry was never to answer a question with “yes” or “no.” The approved methodology was to begin a dialogue with a restatement of the question in another, more ambiguous, form than in which it was asked. Then the sophist makes an even more ambiguous statement that will, seemingly, answer the question that he has rephrased. The end result is a statement which might be accepted by the questioner, but which never actually answers the question. Was I the only one who saw this as a pattern in Alito’s answers? I hope not.
There is a serious doubt as to Judge Alito’s veracity. And that’s something utterly untenable to the prerequisites of a qualified justice for the U.S. Supreme Court. If Alito is confirmed, I foresee an inexorable shifting of the John Roberts’ Court to the right, to advance the extremism of the neo-conservatives who are proponents of the Bushian political agenda. I foresee the rights of women to biological privacy, and to control their reproductive processes, potentially diminished through a reversal of Roe v. Wade, and more unconstitutional restrictions placed upon the rights of minorities to cast their votes in national elections. I also dread the ominous judicial legislation of morality through decisions which will abridge the First Amendment separation of church and state. While firmly believing that Chief Justice John Roberts will prove to be a rubber stamp for lame duck George W. Bush and an austere Republican majority in Congress, I have no qualms about saying that the poignant doubts hovering over Alito’s honesty and fair objectivity will cast an awful threatening specter over the court. As much of one as was created in the Taney court with the Dred Scott Decision.