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For Alito Hearing Theater, Get Your Playbill Here

Wednesday, January 11, 2006

The Supreme Court confirmation hearings for Samuel Alito offer political theater of the highest consequence. Gloria Feldt says to be careful about whose script you follow and offers a playbill for an interactive performance.

Editor's Note: The following is a commentary. The opinions expressed are those of the author and not necessarily the views of Women's eNews.

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The Supreme Court confirmation hearings for Samuel Alito offer political theater of the highest consequence. Gloria Feldt says to be careful about whose script you follow and offers a playbill for an interactive performance.
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Gloria Feldt

(WOMENSENEWS)--All congressional hearings are theater.

Judge Samuel Alito's nomination hearings for the U.S. Supreme Court this week, taking place before the Senate Judiciary Committee, are no exception.

It is high drama with enormous consequences. Nominated to fill the pivotal seat vacated by Justice Sandra Day O'Connor, he could provide her often-critical fifth vote in cases significant to a broad range of women's rights, religious liberties and other civil rights.

So pay close attention and use this playbill to follow the performance and note that when the curtain falls, it will be time for you to act.

Act One: Philosophical Adversaries Teach Important Lessons

Regarding Supreme Court nominees, Tony Perkins, president of the far-right Family Research Council, said it quite well last July, just days before John Roberts was nominated to the court: "People have to understand, this is not just about a process. This is about the future of the country. It is about our families. It is about the freedom of religion."

Agreed. But while most Americans would wish to protect everyone's freedoms under the Constitution, Alito's record--complete with rulings and writings tolerant of government wire-tapping--forewarns the opposite.

We have grown accustomed to a court whose centrifugal force was predominantly centrist for decades, in no small part because of Sandra Day O'Connor's influence. But with Alito taking over her crucial fifth swing vote, the executive branch could amass more power than Congress, and businesses, government agencies and others with power could more readily skirt provisions of the Civil Rights Act.

Act Two: Alito's Background Is Revealed

Alito's confirmation to the court will have real consequences for real people.

Cass R. Sunstein, a law professor at the University of Chicago, said this about Judge Alito's dissents from opinions issued by the U.S. Court of Appeals for the Third Circuit on which he sat for 15 years: "Somewhere between 100 percent and 85 percent are to the right of the majority, depending how you count."

With that in mind, even those who deluded themselves into thinking that a rightward-leaning president would do anything other than appoint the most rightward-leaning judges should have received their wake-up call.

The National Women's Law Center analyzed Alito's record as a federal judge on reproductive rights, federalism and sex discrimination in employment. Consider how his past could predict about your future.

The center finds that Judge Alito . . .

. . . wrote a strong dissent from a decision upholding Congress' power to ban the possession and transfer of machine guns.
. . . ruled against congressional power to enact important provisions of the Family and Medical Leave Act.
. . . was the lone dissenter on his court in Casey v. Planned Parenthood. He would have upheld a state law requiring women to notify their husbands before having an abortion.
. . . refused to join the opinion of his court striking down a state ban on abortion procedures that had no exception to protect a woman's health.
. . . has issued decisions making it harder for victims of race and sex discrimination to prove their cases.

Act Three: Fallacy Is Separated from Fact

Many on both the right and the left will say that there should be no "litmus test" for judges. This is usually code for saying a nominee should not have to reveal his or her position on a given issue, such as reproductive rights.

But upholding the Constitution--including the expansion of freedoms that have been affirmed over time--isn't a litmus test; it's a requirement.

We already know Alito authored, in 1985, a legal strategy to chip away at Roe v. Wade until it is overturned, which has been used to great effect by anti-choice administrations ever since. His "that was when I was applying for another job" explanation is unprincipled at worst and insufficient at best.

It may be true that a woman's right to abortion is not enshrined in the original Constitution ratified in the 18th century. But neither are many other freedoms we have embraced more recently. We would not want the Senate to confirm a nominee who opposes Brown v. Board of Education because desegregation wasn't in the original Constitution, would we?

By the same token, Alito should not be confirmed if he refuses to affirm that a woman has the civil and human right to make her own childbearing decisions without government intrusion. Period.

You will also hear some people say that "special interests" shouldn't influence the judicial confirmation process. Rubbish. All Americans are free to make our voices heard. That's what the First Amendment is all about. But then perhaps there are some who aren't so sure about that pesky First Amendment either.

In any case, what defines a "special interest"?

"Judge Alito's record on the bench demonstrates that he would go to great lengths to restrict the authority of Congress to enact legislation to protect civil rights and the rights of workers, consumers and women," Senate Judiciary Committee top Democrat Patrick Leahy of Vermont has observed. Hello; isn't that just about all of us? Is the American public a "special interest"?

Epilogue: Perform Political Acts

Leaders of the extreme right made a strategic decision almost 40 years ago to organize at the grassroots. Their ambition was to take over the mechanisms of the Republican Party precinct by precinct, gain control over the media and stick with their agenda through thick and thin, year in and out.

Democrats and progressives have often fought these battles one at a time. To change the nation's course we must recognize this is a full-blown war, strategically designed with concrete agenda issues crafted to drive public debate and political action. The fruits of labor by Perkins' organization and others on the far right are becoming increasingly transparent in judicial selection precisely because it is not "just a process."

That said, it is critically important that senators ask Alito tough questions and demand candid and complete answers. They should come out swinging, knowing that Americans want and need them to protect our diversity of religious beliefs and to affirm the civil rights gains we have achieved over the years.

Keep this playbill close at hand. Don't let the senators off the hook during the hearings or afterward if there is a full Senate vote. Make sure they hear from you every day. Go out and get some popcorn from time to time, but don't cede your seats in the political theater, this week, or ever.

Gloria Feldt is the author of "The War on Choice: The Right-Wing Attack on Women's Rights and How to Fight Back" (Bantam, 2004). She is also the former president of Planned Parenthood Federation of America Inc. and can be reached through http://www.gloriafeldt.com.

For more information:

National Women's Law Center:
http://www.nwlc.org/

People For the American Way--SaveTheCourt.org:
http://www.savethecourt.org

The New York Times--Live Web video, audio and print coverage
of the hearings:
http://www.nytimes.com/pages/politics/politicsspecial1/?excamp=GGGNalito

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