It is a remarkable sign of the times that within hours of the nomination of Alito we can read a kind
of point-counterpoint in which he references O’Connor in a decision and she references that decision in a later rejection. There is no
doubt: he’s no O’Connor. mjh
Samuel A. Alito Jr., 55, is a jurist in the
mold of Justice Antonin Scalia. Nicknamed “Scalito,” or “little Scalia,” by some lawyers, the federal appeals court judge is a frequent
dissenter with a reputation for having one of the sharpest conservative minds in the country. …
In 1991, he was the lone
dissenter in a 3rd Circuit decision striking down a Pennsylvania law’s requirement that women tell their husbands before having an
abortion.
Bush Selects Alito for Supreme Court
Citing previous opinions of
O’Connor, Alito wrote that an abortion regulation is unconstitutional only if it imposes an undue burden on a woman’s access to the
procedure. The spousal notification provision, he wrote, does not constitute such a burden and must therefore only meet the requirement
that it be rationally related to some legitimate government purpose. …
“In addition,” he wrote, “the legislature could have
reasonably concluded that Section 3209 [the spousal provision] would lead to such discussion and thereby properly further a husband’s
interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure. . . . The Pennsylvania
legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment
even if we deem it “unwise” or worse.”
The case ultimately reached the Supreme Court, which upheld the appeals court decision,
disagreed with Alito and used the case to reaffirm its support for Roe v. Wade , the 1973 decision legalizing abortion.
On the
spousal notification provision, O’Connor wrote for the court that it did indeed constitute an obstacle. The “spousal notification
requirement is . . . likely to prevent a significant number of women from obtaining an abortion,” she wrote.
“It does not merely
make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind
ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be
deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases,” she said.
Plus, it
“embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of
marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when
they marry, ” she said.
“The Constitution protects all individuals, male or female, married or unmarried, from the abuse of
governmental power, even where that power is employed for the supposed benefit of a member of the individual’s family.”
Newsday.com: Alito provoked no controversy at confirmation hearing 15 years ago By JESSE J. HOLLAND, Associated Press
Writer
WASHINGTON — Fifteen years ago, Samuel Alito told senators at his confirmation hearing that judges shouldn’t “step over
the line” into lawmaking or “try to pigeonhole the case or to import a judge’s own view of the law into the law,” records showed Monday.
…
Alito’s confirmation to the 3rd U.S. Circuit Court of Appeals was noncontroversial, with the full Senate approving his
nomination on April 27, 1990, by unanimous consent, which meant that there was no opposition among the 100 senators. Nominated on Feb.
20, Alito was rated well qualified by the American Bar Association.
Remarks on Alito Nomination
A preliminary review of his record raises real questions about Judge Alito’s judicial philosophy
and his commitment to civil rights, workers’ rights, women’s rights, the rights of average Americans which the courts have always
looked out for.
Now, it’s sad that the president felt he had to pick a nominee likely to divide America instead of choosing a
nominee in the mold of Sandra Day O’Connor who would unify us.
America needs unity now. America needs reaching out to one another
more than ever. But the president seems to want to hunker down in his bunker and is more concerned about smoothing the ruffled feathers
of the extreme wing of his party than about governing all of America and changing history for the better.
SCHUMER: This
controversial nominee, who would make the court less diverse and far more conservative, will get very careful scrutiny from the Senate
and the American people.
The president had an opportunity to nominate someone in the mold of Sandra Day O’Connor, a mainstream,
albeit conservative, who would unite the country, not further decide us. At first blush, Judge Alito does not appear to be a Sandra Day
O’Connor.
It is an immutable law of history that when a president tries to govern from the extreme, his presidency and the
country end up losing. Democrats learned this when we governed from the far left. President Bush will learn this as well. …
QUESTION: Why do you think the president nominated Judge Alito?
SCHUMER: Well, as I said, I think that the president received so
much criticism from the extreme wing of his party that he felt, in his position right now, that he couldn’t afford to alienate them
further. And they demanded fidelity to their viewpoint.