Just as Harriet Miers had made public statements opposing discrimination against gays and lesbians in her past as a Dallas City Council candidate, so too has Bush Supreme Court nominee Judge Samuel Alito. The Boston Globe reports today that as a student chair of a taskforce at Princeton University Alito authored a report calling for an end to: criminal sodomy laws; discrimination against gays in hiring; and respect for the right of privacy. The report was issued in 1971 as a student project to study the “boundaries of privacy in American society” and to recommend ways to protect individual rights.
News of the report will not be welcomed by the Christian right, which had a big hand in Bush’s decision to nominate a conservative judicial candidate who would move the Supreme Court further to the right. The Christian right reacted angrily when it learned that Harriet Miers had met with a local gay rights organization in 1989 as a Dallas City Council candidate and had answered a questionnaire of the group saying that she opposed discrimination against gays.
In a forward to the report, Alito wrote: ''We sense a great threat to privacy in modern America. We all believe that privacy is too often sacrificed to other values; we all believe that the threat to privacy is steadily and rapidly mounting; we all believe that action must be taken on many fronts now to preserve privacy." Among the actions recommended by Alito’s report was the decriminalization of sodomy and the enactment of laws to end discrimination against gays in hiring. The report was written more than 30 years before the Supreme Court finally struck down state sodomy laws in Lawrence v. Texas in 2003. At the end of the report, Alito wrote: ''The erosion of privacy, unlike war, economic bad times, or domestic unrest, does not jump to the citizen's attention . . . But by the time privacy is seriously compromised, it is too late to clamor for reform."
As the Boston Globe report notes, it is not at all clear how Alito personally felt about these issues. This report was issued before he attended Yale Law School, worked in the Reagan administration Justice department and served as a U.S. Court of Appeals judge. Judge Alito has also been an active member of the Federalist Society, which has been very skeptical of a constitutional right to privacy, except as specifically provided in the Bill of Rights. Also, the National Law Journal in 1992 wrote that Judge Alito “is described by lawyers as exceptionally bright, but much more of an ideologue than most of his colleagues.”
A report by the Alliance for Justice also raises many red-flags concerning Judge Alito’s respect for the rights of the individual. The report cites several Title VII discrimination cases where Judge Alito interpreted civil rights laws so narrowly as to make it nearly impossible for plaintiffs to prove claims of race and sex discrimination. In a couple of decisions, he dissented from a majority of his colleagues in supporting intrusive strip searches of women and children who were not named in search warrants. In one of those cases, even then-Judge Michael Chertoff, now Secretary of the Department of Homeland Security, sharply criticized Judge Alito’s narrow interpretation of the constitutional protection against unreasonable searches and seizures.
While the Roe v. Wade precedent has severely limited his opinions in the area of reproductive choice, in at least one case, Planned Parenthood of Southeastern Pennsylvania v. Casey, Judge Alito was the lone judge supporting a spousal notification provision of a Pennsylvania statute which the Supreme Court later struck down. Justice Sandra Day O’Connor, writing for a 5-4 majority, spoke disapprovingly of the spousal notification provision. The plurality decision analogized the spousal consent provision to long-discarded legal views, saying the provision brought to mind an 1872 case upholding a state ban on women lawyers in which “three members of this Court reaffirmed the common-law principle that ‘a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state.’” O’Connor said, “These views, of course, are no longer consistent with our understanding of the family, the individual or the Constitution.”
Given Judge Alito’s record on the U.S. Court of Appeals as a conservative activist, it is unlikely that the Christian right will be too shaken by his “youthful indiscretions” for being too tolerant towards gays as a student at Princeton. It will be interesting to hear Judge Alito finesse his response to questions from Senators as to whether he still holds the views expressed by the 1971 Princeton report so as not to offend the Christian right, which after all handpicked him to replaced O’Connor.
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