Task Force Public Policy and Government Affairs Department On Alito Nomination

December 12, 2005

Statement by Eleanor (Eldie) D. Acheson, Director, Public Policy and Government Affairs

Roberta Sklar, Director of Communications

"Today [Monday, December 12, 2005], the Task Force announced its opposition to the nomination of U.S. Court of Appeals Judge Samuel Alito to the Supreme Court of the United States. We oppose Judge Alito's appointment because his professional and judicial record reveal a clear and long-held hostility to a reading of the Constitution to protect the individual rights and equal protection guarantees of all Americans and to uphold the power of Congress to legislate for the health, safety and welfare of ourselves and our environment.

"It is regrettable enough that Judge Alito sits on the U.S. Court of Appeals; were he to become a Supreme Court justice, he would be free of the obligation of lower court judges to follow and apply decided law and in a position to vote, and to persuade his colleagues on the Court to vote, to change the law and roll back fundamental rights, such as privacy including rights to sexual intimacy and reproductive choice, and other constitutional principles that are essential to fairness and opportunity for all in our diverse and pluralistic society.

"Judge Alito's alarming record would alone be sufficient for the Task Force to oppose his appointment to the Supreme Court. But the disaster his appointment would be is underscored by the fact that he has been nominated to succeed Justice Sandra Day O'Connor. While certainly a conservative herself, Justice O'Connor has been a — and often the — critical vote on the Court on many issues including the right of privacy and reproductive choice, employment rights and other worker protections and the values of diversity. It is ironic, and dismal, to think of the struggles Justice O'Connor had as a woman lawyer in the 1950s, 60s and 70s and that after her 1981 appointment to the Supreme Court then Justice Department lawyer Alito was putting forward as a key credential for promotion his membership in an alumni group that opposed his university's decision to accept women.

"And it is just downright scary to know two other facts that bracket Judge Alito and Justice O'Connor and highlight a critical difference in their views: first, in 1985 lawyer Alito volunteered advice to Department colleagues as to how to curtail abortion rights and worked on a brief that argued for that result but was roundly rejected by Justice O'Connor and a strong majority of her colleagues on the Supreme Court; later, in the early 1990s, then Judge Alito voted to uphold as constitutional a state law requirement that a married woman notify her husband of her decision to abort a pregnancy, a requirement that was ultimately rejected as an unconstitutional burden on a woman's right to abortion by Justice O'Connor and only four of her colleagues.

"Judge Alito's biography and qualifications — Princeton University, Yale Law School, a federal court of appeals clerkship followed by work as an assistant federal prosecutor, an assistant Solicitor General position and appointments as a deputy assistant Attorney General, U.S. Attorney for New Jersey and court of appeals judge — are admirable and strong on paper. But his embrace in the 1980s of the right wing agenda for the Constitution and the role of judges and the courts in pushing that agenda combined with his own judicial record — a record that reflects that right wing agenda and patterns of result-oriented decision-making — raise the presumption that a Justice Alito would be a man on a mission to end the legal right to abortion, curtail workers'and minority rights, undermine the basic apportionment principle of "one person, one vote,' eliminate diversity as a recognized value in the law, promote religious expression in public and official places, diminish citizens' rights with respect to criminal investigations and prosecutions, curtail judicial review of criminal convictions, limit the scope of Congressional power particularly in favor of state interests and elevate the authority and discretion of the Executive Branch.

"In late 1985 Alito was a lawyer in the Solicitor General's office seeking an appointment by Attorney General Edwin Meese to be a deputy assistant Attorney General in the Office of Legal Counsel (OLC) at the Department of Justice. (OLC serves as legal, including constitutional, counsel to the President of the United States and the Department of Justice (and, indeed, entire Executive Branch) and is a major shaper of any administration's constitutional policy and positions.) In that effort, Alito wrote a letter in which he claimed 'lifelong' Republican Party, conservative and Federalist Society affiliation and credentials; in that letter he also said:

'In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with the Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.

'I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this administration.

'It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.'

"It worked. Alito got the promotion he then sought. He also was later appointed to his present position as a federal appeals court judge and began the 15 years of creating the record we see today. Has he been taking each case on its own facts and merits and doing his best to apply the law with no eye to his earlier-stated legal philosophy or has he, as we believe, been fashioning his decisions to advance his views of the Constitution?

"This is the question the Senate must address. Judge Alito has been assuring progressive Senators that he has had no agenda as a federal judge, that he will have no agenda on the Supreme Court and that he fully understands and accepts the values of precedent including the right to privacy. But the issue here is not really one of following precedent or not, and the Senate should not let Judge Alito off on smooth and platitudinous statements about generic principles of judicial decision-making that reveal little or nothing. The issue with Judge Alito's nomination for Justice O'Connor's seat is whether we are going to go forward with a Court that will protect individual rights and secure equal justice under law for all of us in a 21st century America or backward to a dark and regrettable time. We believe that Judge Alito's record leaves no doubt about the answer to that question and, thus, that the Senate must reject his nomination."


The mission of the National Gay and Lesbian Task Force is to build the political power of the lesbian, gay, bisexual and transgender (LGBT) community from the ground up. We do this by training activists, organizing broad-based campaigns to defeat anti-LGBT referenda and advance pro-LGBT legislation, and by building the organizational capacity of our movement. Our Policy Institute, the movement’s premier think tank, provides research and policy analysis to support the struggle for complete equality and to counter right-wing lies. As part of a broader social justice movement, we work to create a nation that respects the diversity of human expression and identity and creates opportunity for all. Headquartered in Washington, D.C., we also have offices in New York City, Los Angeles, Miami, Minneapolis and Cambridge.