The leftist groups have pretty plainly said that they are
planning to put up quite a fight to ensure that Alito is not
confirmed. Most recently, Nan Aron of Alliance for Justice
told USA Today that they would do what it takes..."You
name it. We'll do it."
It appears that the left is focusing in on five cases in
particular. They'll probably bring out more and escalate
as the hearings draw near. But here are the cases and
the REAL stories behind them. (I know -- it is a complete
shock that the left has distorted the cases....)
Doe v. Groody
Liberals have distorted this ruling, saying Judge Alito
approved a so-called "strip-search" of a 10-year old girl
which is completely false. First, Alito's ruling was not a
policy statement, but a qualified, technical ruling on the
difficult question of how a search warrant and the
accompanying affidavit should be read together.
Attached to the warrant was an affidavit from police,
noting the necessity of searching anyone found at the
house, because drug dealers routinely hide drugs on
other people during raids.
During the raid, a female officer asked the dealer's
wife and daughter to go to a private bathroom, turn
out their pockets, and then remove their clothes for
a visual (not manual) inspection by her. Notably, the
other two judges on the panel, who ruled that the
affidavit could not be taken into account, never used
the term "strip search" (except in summarizing the
lawsuit's claims).
Liberals have characterized Judge Alito’s position as
approving of the strip-search of a young girl. The legal
reality actually involved a technical question on the
scope of a warrant and affidavit. But if liberals want
to take this policy position that these searches are
unacceptable, then they need to explain why they
want to incentivize drug dealers to involve young
children in their drug trade.
If police with a warrant cannot search young children
then drug dealers will open up day care centers.
Typically, in their rush to paint Judge Alito as
insensitive, liberals have endorsed a policy that
would result in more abuse of children, not less.
United States v. Rybar
Judge Alito’s dissent in the case is being outrageously
miscast as evidence that he opposes the federal ban
on machine guns. In fact, Alito’s opinion is a
straightforward application of the Supreme Court’s
1995 Lopez decision, in which Justice O'Connor and
four of her colleagues struck down an almost identical
federal ban on possession of guns near schools, because
the statute exceeded Congress’s enumerated powers.
Alito – a former federal prosecutor – went out of
his way to note that Congress could easily cure the
statute’s constitutional defects with a relatively minor
modification or additional findings. He also pointed
out that machine guns were already regulated by
all states affected by his court’s decision.
Even the Washington Post recognized that Rybar
is being mischaracterized when it issued a correction
of a November 9 article that “incorrectly described
Supreme Court nominee Samuel A. Alito Jr.'s
opposition to a federal firearms law.”
Planned Parenthood v. Casey
The Left’s claim that Judge Alito supported a
Pennsylvania law requiring women to get permission
from their husbands before having an abortion is
wrong on at least two counts. First, the statute at
issue – signed by a Democratic governor and
passed by a nearly 3-1 majority in the Democratic-
controlled Pennsylvania House, required spousal
notification, not permission. Moreover, the
notification requirement was waived under a
variety of circumstances, including the potential
that the husband would react abusively.
Second, far from containing his personal views
on abortion, Alito’s partial dissent in the 1991
case is a meticulous analysis and application of
Justice O’Connor’s then still-evolving standard
for determining what abortion restrictions are
unconstitutionally burdensome. Notably, once
the Supreme Court clarified the standard, Alito
faithfully applied that and other precedents to
strike down New Jersey’s partial birth abortion
ban (Planned Parenthood v. Farmer) and
Pennsylvania’s second doctor certification
requirement for Medicaid-funded abortions
(Blackwell Health Center v. Knoll).
Sheridan v. DuPont
Judge Alito’s partial dissent in this case is
being mischaracterized as evidence that he
wants to make it harder for plaintiffs in
discrimination cases to win. In fact, Alito’s
opinion is a technical and narrow disagreement
with the majority concerning burdens of proof.
His opinion merely acknowledges the reality
that an employer might have a non-discriminatory
reason for taking a particular employment action
despite offering a different explanation earlier
in the litigation.
Far from being evidence that Alito is out of
the mainstream, his view in this case had already
been adopted by three other U.S. Courts of
Appeal, and was later unanimously adopted
by the Supreme Court in an opinion by Justice
O'Connor.
Chittister v. Dept. of Development
This case posed the question of whether Congress
validly abrogated the sovereign immunity granted
to state governments by the Constitution when it
subjected them to suit under the federal Family
and Medical Leave Act of 1993 (FMLA). The Left
has characterized Judge Alito’s opinion in this case
as evidence that he is unsympathetic to women
and workers and is more conservative than the
Supreme Court. Both charges are false.
First, Alito’s opinion – finding that states could
not be lawfully subjected to suit – was a unanimous
one joined by an African-American Clinton appointee
and a Lyndon Johnson appointee. Moreover, the
vast majority of judges considering the same issue
in other U.S. Courts of Appeal -- including 10 of 13
Democratic appointees – reached the same conclusion.
Second, Alito’s opinion cannot be compared to the
Supreme Court’s later decision in another case
involving the FMLA. That case, Nevada v. Hibbs,
involved the FMLA’s family leave provision and
was based on the theory that such leave had
historically been provided unequally for men
and women. Chittister, on the other hand,
involved the FMLA’s sick leave provision, for
which there is no evidence of gender discrimination.
Ethics
Sensing that are no substantive issues on
which they can make headway, Judge Alito’s
critics have attempted to attack the nominee
by inventing ethical issues concerning his lack
of recusal in two cases involving alleged conflicts
of interest. However, a clear reading of the
federal conflicts statute reveals that Alito had
no ethical duty to recuse himself in either case
– one involving Vanguard and the other Smith
Barney. Despite owning Vanguard funds and
using Smith Barney’s brokerage service, Alito’s
financial interests could not be affected by
either decision. Thus, as two independent
legal ethics experts have explained, there is
no conflict.
Moreover, Judge Alito’s participation in the
Vanguard case was caused by the failure of a
Third Circuit computer program which should
have been triggered, given that Alito had listed
Vanguard funds among his assets. When Alito
became aware of an allegation of conflict in the
case, he immediately asked to have a new
appellate panel review the decision, despite
being under no ethical duty to do so. The new
panel reached the same unanimous decision.
