By Lisa Keen
WASHINGTON – Federal Judge Samuel Alito Jr. says he’s not a bigot, and during his Senate confirmation hearing last week, he disavowed anti-gay remarks that showed up in the publication of an alumni group to which he belonged. Yet on his questionnaire to the Senate Judiciary Committee, he noted that he won an award from a virulently anti-gay organization for overturning an anti-harassment policy that tried to stop anti-gay harassment.
When asked by Sen. Russ Feingold (D-Wisc.) whether he believes Congress has the power to prohibit employment discrimination against gays – an apparent reference to the Employment Non-Discrimination Act – Alito’s wholly qualified response was less than comforting.
“I can’t think of a reason why Congress would not have that power,” he said, “but I would have been presented with the arguments.”
Like Chief Justice John Roberts Jr. before him, Alito did say he believes the Constitution implicitly guarantees a right to privacy, a concept important to all Americans. But he balked at saying whether he believes that privacy right would apply to much smaller populations, such as women seeking abortions. That right is important to gays because Lawrence v. Texas, which, in 2003, struck down laws prohibiting same-sex sexual relations, was based upon it.
When Feingold asked whether Congress has the authority to enact legislation that would protect gay students from harassment at schools that receive federal funding, Alito said that would depend on whether the harassment policy was “germane” to the purpose of the federal funding.
“Congress has the authority to attach all sorts of conditions to the receipt of federal money,” said Alito. “It has to be clear so that the states understand what they’re getting into, that if you take this money, there are conditions that go with it – but provided that that clear statement requirement is satisfied, and provided that the condition is germane to the purpose of the funding, then Congress can attach conditions and it could do so in this area.”
Alito was much more definitive in his response to Sen. Lindsey Graham’s (R-SC) question, “Are you a closeted bigot?”
“I’m not any kind of bigot,” said Alito. “I’m not.”
Commentators said Graham was attempting to neutralize the implications of questions from Democrats on the Judiciary Committee that highlighted his membership in Concerned Alumni of Princeton (CAP). The group was a right-wing organization with decidedly hostile views on gays, women, and racial minorities, formed in 1972 when Alito graduated from Princeton. Thirteen years later, Alito included his membership in the group on his application for a job with the Reagan Justice Department.
During Wednesday’s hearing, Sen. Edward Kennedy (D-Mass.) read excerpts from articles in the group’s publication, The Prospect. One essay, published in 1983 stated, “People nowadays just don’t seem to know their place. Everywhere one turns, blacks and Hispanics are demanding jobs simply because they’re black and Hispanic. The physically handicapped are trying to gain equal representation in professional sports. And homosexuals are demanding the government vouchsafe them the right to bear children.”
Kennedy also read an excerpt from a 1984 issue which noted the need for more clinical trials on HIV treatments and then suggested “Princeton’s Gay Alliance may want to hold an election” to find candidates for such research.
Alito said he could not remember joining the group or being involved in any of its activities. He said he would guess he had joined because of his concern that many students while he was at Princeton derided members of ROTC, of which he was also a member. As for the sentiments in the articles that Kennedy read, Alito said he did not recall having read the group’s publication and added, “I disagree with all of that. I would never endorse it. I never have endorsed it. Had I thought that that’s what this organization stood for, I would never associate myself with it in any way.”
Alito is apparently unaware of the Family Research Council’s anti-gay activities, including its efforts to drum up support for him by telling churchgoers attending its “Justice III” rally in Philadelphia just prior to the confirmation hearings that Alito will vote against same-sex marriage on the Supreme Court. On his questionnaire to the Senate Judiciary Committee, he listed an award from that organization, noting that it was given to him in 2001 for his decision in the student anti-harassment case.
Alito’s responses on a number of other questions of interest to gays included:
Defining traditional values: In his 1985 application for the Reagan Justice Department, Alito stated that he believes “very strongly” in the “legitimacy of a government role in protecting traditional values.” Asked by Sen. Herb Kohl (D-Wisc.) what he meant by traditional values, Alito said, “I think a traditional value that I probably had in mind [in 1985] was the ability to live in peace and safety in your neighborhood. And that was a big issue during the time of the Warren court. And it was still a big issue in 1985 when I wrote that statement, because that was a time of very high crime rates. I think that’s a traditional value. I think the ability of people to raise a family and raise their children in accordance with their own beliefs is a traditional value. I think the ability to raise children in a way that they’re not only subjected to – they’re spared physical threats, but also psychological threats that can come from elements in the atmosphere, is a traditional value. I think that the ability to practice your own conscience is a traditional value. That’s the best I can reconstruct it now, thinking back to 1985.”
Right to privacy: While he said, “I do agree that the Constitution protects a right to privacy,” Alito’s elaboration on that view discussed only “a right to privacy in their homes and in their papers and in their persons,” as well as the right to receive contraception. He declined to say whether he believes that right would cover a woman’s right to choose to have an abortion, saying that a case involving the issue might come before him. If it does come before him, Alito said, he would have an “open mind” in deciding the case. While acknowledging that Roe v. Wade, the 1973 decision saying the Constitution protects the right to choose abortion, is an “important precedent” in deciding future cases concerning the right to abortion, he stopped short of calling it “settled law.” Alito’s position on the right to privacy implicates Lawrence v. Texas, the 2003 U.S. Supreme Court decision that struck down sodomy laws based on the presumed right to privacy.
Political leanings: While boasting on his 1985 job application to the Reagan administration that he has always “been a conservative,” he said during his confirmation hearing that a judge “can’t have any agenda, a judge can’t have any preferred outcome in any particular case and a judge certainly doesn’t have a client. The judge’s only obligation – and it’s a solemn obligation, is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.” During the hearing, one of the Democratic senators read from an interview to a media outlet that Alito gave following the failed nomination of federal Judge Robert Bork to the Supreme Court. In that interview, Alito described Bork as “one of the most outstanding nominees of this century.” Bork was known to the gay community as one of the most anti-gay judges on the bench. Interestingly, on CNN’s Situation Room news magazine Wednesday, Bork said he is certain neither Roberts nor Alito would vote to find a constitutional right to same-sex marriage.
Since the blistering and raucous failure of Bork’s nomination, nominees to the Supreme Court have revealed less and less about their political leanings and judicial approach to interpreting the Constitution. Sen. Jon Kyl (R-Ariz.) submitted to the confirmation hearings record this week information about a 2003 study of employment discrimination claims in federal court found that federal appeals court judges sided with plaintiffs in only 13 percent of the cases but that Alito had sided with plaintiffs 22 percent of the time. But that statistic stood in contrast to one offered in a Washington Post analysis of Alito’s record on the 3rd Circuit U.S. Court of Appeals. The Post said that, in 221 cases in which the court’s decision was divided, Alito sided against 75 percent of plaintiffs who claimed to have been victims of discrimination.
Michael Adams, a spokesperson for Lambda Legal Defense and Education Fund, said there were “no significant surprises” in last week’s hearings.
“He did not say anything,” said Adams, that would reverse Lambda’s decision to oppose Alito’s nomination, “and the things he refused to say only reinforced our position.”
Sen. Arlen Specter (R-Penn.), chairman of the Judiciary Committee, told reporters Friday that he expects the vote on the Senate Judiciary Committee to be along party lines – 10 Republicans for, 8 Democrats against – when that vote is taken. It was originally scheduled for Jan. 17; however, Democrats asked for a one-week delay.