Are Our Rights Safe?

Zaid A. Zaid
Class of 2007

Whenever I see conservatives excited about something, I’m immediately skeptical. Call it Zaid’s version of strict scrutiny. I admit, before this week, I’d only heard a few things one way or the other about President Bush’s nominee for the Supreme Court, Judge Samuel Alito. However, I had heard about a few of his opinions. After reviewing some of them, they give me pause. They should give you pause too.

Folks, we can’t get away from the importance of Roe v. Wade, 410 U.S. 179 (1973), to this country. It’s important not only because overturning it would mean overturning settled law, annihilating the rights of women, and rolling back civil liberties in general. It is also important because Roe v. Wade was held under a constitutional “right to privacy.” That “right to privacy” is central to our contemporary constitutional understanding. Lawrence v. Texas, 539 U.S. 558 (2003), also rests on this constitutional protection. I fear that an overturning of Roe will have alarming consequences for the civil liberties the Court has recognized and protected in the past few decades. A roll-back will have drastic consequences for American society. (According to a Time/CNN poll, a majority of people think that Judge Alito should NOT be confirmed if he would vote to overturn Roe.) President Bush has maintained that he does not ask his nominees about their views on abortion. But does the President really need to ask Judge Alito? Don’t we already know how he thinks? We know how he voted on the Third Circuit’s hearing of Planned Parenthood v. Casey, 947 F.2d 682 (1991). (Against Planned Parenthood in case you were wondering.) We also know that the Supreme Court disagreed with him. (See 505 U.S. 833 (1992).)

Another thing we know is that Judge Alito has not been a big fan of Civil Rights legislation and lawsuits. Sitting en banc, the Third Circuit majority chastised him for his dissenting opinion in Bray v. Marriott Hotels, 110 F.3d 986 (1997). In that case he wanted to deny an African-American woman even the opportunity to present her Title VII discrimination claim against Marriott Hotels.

As Elaine Jones so eloquently put it at the ACS National Convention in July (speaking about then-nominee John Roberts: “[W]e have a President who tells us he wants his nomination and his nominee to be akin to whose philosophy on the Court? He said it. He said Justice Scalia and Justice Thomas. That what he said! Did the President not do what he intended to do? Did he not mean it? The President has told us what he wants. Why are we even thinking that he’s got something other than what he told us he wanted?” (The full text of Ms. Jones’s speech is available at: http://www.americanconstitutionsociety.org/pdf/jonestranscript.pdf.) Say what you will about the President, but when he is determined, he is determined (remember Iraq?). Why should anybody think that Judge Alito is anything other that what the President promised?

Newspaper articles and political pundits have talked about how nice Judge Alito is. I have no doubt that he’s a good boss and a nice person. But will he roll back rights? Will he tell women that they don’t have the right to make decisions about their own bodies? Will he tell gays and lesbians that the state can discriminate against them? Will he vote to overturn recent Affirmative Action opinions? Will he vote to overturn Civil Rights legislation? The answers should be obvious.

Oh my Lord!! I’m watching CNN at my parents’ house, and I just saw an ad for Judge Alito! When did these start? (I don’t have cable and don’t watch much TV.) Campaign ads for the Supreme Court?? I’m seriously behind the times (this is what happens when you’re a law student). I mean, I’d heard about them, but I guess I’d never seen one.

Article II, §2, cl. 2 requires the Senate to give the President “Advice and Consent” on Supreme Court nominations. It is the duty of the Senate to look long and hard at Judge Alito. If you are as concerned as I am, then you have to hope that the “Gang of 14” will save this country.