Alito Protects Minority Rights


It’s axiomatic that Jews tend to view all news through the lens of “but is it good for the Jews?” It’s therefore no surprise that this filter now is being brought to bear on my former boss and mentor, Judge Samuel Alito Jr., who has been nominated to the U.S. Supreme Court.

Based on my experience working closely with Judge Alito, I can answer unequivocally that yes, Judge Alito will be good for the Jews — and, by extension, for all Americans.

I’m a pro-choice, registered Democrat who supports progressive candidates. I’m also a graduate of the Jewish Theological Seminary and an observant Jew who is active in my community. Notwithstanding numerous areas of commonality I have with the liberal groups opposing Judge Alito’s nomination, I wholeheartedly disagree with their position on the nomination.

First, while the Jewish community may be suspicious that certain statements made when Judge Alito worked in the Reagan-era Justice Department show him to be a dyed-in-the-wool conservative intent on enacting a conservative agenda, I believe such fears are misplaced.

Regardless of Judge Alito’s personal beliefs or positions that he advocated while a litigator with the Justice Department, he takes great pains to set aside his personal opinions when judging. To be frank, he did such a good job of setting aside his personal beliefs that I did not know what they were when I clerked for him.

In this era in which nearly everything is subject to partisan politicization, it is hard to understand that someone can put aside one’s personal views. Yet Judge Alito is so committed to the judicial process, including the principle of respecting prior precedent, that he succeeds in doing so.

Contrary to attempts to paint Judge Alito as a conservative ideologue, I can attest to the fact that Judge Alito is an open-minded judge who does not come to cases with preconceived notions. One time, while working on a criminal appeal, I made the mistake of commenting that the case should be fairly easy to decide in favor of the government, in light of the extremely slipshod brief submitted by defense counsel.

Even though he was a former federal prosecutor with considerable experience with criminal cases, Judge Alito rebuked me for my attitude, and made it known that we were to carefully read all briefs and the appellate record, and conduct any additional research needed to ensure that all parties received fair hearings before the court of appeals. Like Judge Alito, we were expected to keep an open mind and not prejudge any case.

Second, in areas of religious freedom, Judge Alito has a proven record of being sensitive to the needs of minority religions. It’s often said that Jews are the canaries in the mineshaft of civilization: One can tell how well a civilization is doing by the way it treats the Jews.

I would extend that metaphor to all minority religious groups. Judge Alito has considerably more sensitivity to members of minority religions than some of the conservative justices currently serving on the Supreme Court.

The current Supreme Court standard for determining religious discrimination cases under the First Amendment’s “Free Exercise” clause is Employment Division v. Smith, in which Justice Antonin Scalia wrote that a law that does not target religion does not violate the First Amendment. In other words, if the statute is not targeting a religious practice, it’s constitutional even if it has the effect of banning that practice.

Rabbi David Saperstein of the Religious Action Center of Reform Judaism declared that the Smith line of cases would “go down in history with Dred Scott and Korematsu as among the worst mistakes this court has ever made” — Dred Scott was the case that held that slaves were not people and Korematsu was the case that allowed the U.S. government to intern Japanese-Americans without suspicion of wrongdoing during World War II.

By way of contrast, Judge Alito has written numerous opinions protecting the right of minority religious groups to be free from religious discrimination. One example of his greater sensitivity to religious discrimination cases is a case involving Muslim police officers in Newark, N.J. In that case, Judge Alito held that the city violated police officers’ Free Exercise rights by requiring them to shave their beards in violation of their Sunni Muslim religious beliefs.

In another case, Judge Alito wrote an opinion stating that a university could not discriminate against a Shabbat-observant professor, since “criticism of an employee’s effort to reconcile his or her schedule with the observance of Jewish holidays delivers the message that the religious observer is not welcome at the place of employment.”

In another case involving a member of a Native American religion, Judge Alito wrote that a civic ordinance may not “target religiously motivated conduct either on its face or as applied in practice.”

The American Jewish community owes its vibrancy and continued viability to the constitutional protections of the First Amendment. These cases clearly demonstrate that Judge Alito is more protective of the rights of members of minority religions than some justices currently on the court.

As someone who believes that the Jewish community is best served by judges who limit their roles to deciding specific cases and not enacting their personal agendas, I’m convinced that Judge Alito is by far the best person for this position. Is he good for the Jews? Absolutely.

Jeffrey Wasserstein was a law clerk for Judge Samuel Alito Jr. from 1997-1998. He currently is a principal in the law firm of Hyman, Phelps & McNamara, P.C., in Washington.

 

Alito Would Erode Minority Protection


“But is it good for the Jews?” That was the question many of our grandparents voiced when they perused the morning papers — a question we may have dismissed, even with affection, as a narrow or parochial expression.

Today, we know that what’s “good for the Jews” extends beyond ourselves: It encompasses a concern for the well-being of society as a whole and the fate of our constitutional freedoms. After all, we Jews are unquestionably part of the general community, thriving largely thanks to the protections afforded to us as a minority religion.

For the National Council of Jewish Women, this has led us to take sides in the national debate on the direction of our courts, which are the guardians of our liberty and our well-being as Jews and as Americans. And it has led us to oppose the nomination of Judge Samuel Alito Jr. to fill the Supreme Court seat of retiring Justice Sandra Day O’Connor.

When a Supreme Court nominee decides that the First Amendment permits the majority religion to impose its beliefs and symbols on the rest of us in the public square — it’s not good for the Jews.

When he reveals his lifelong ambition to overturn the landmark 1973 case Roe v. Wade, preventing a woman from following her conscience and religious beliefs when exercising her legal right to choose abortion — it’s not good for the Jews.

And, when he consistently rules against victims of employment discrimination, narrowing civil rights protections — that too isn’t good for the Jews.

Judge Alito has a record of conservatism that is far to the right of our national consensus. He’s the candidate President Bush promised us when he said in 2000 that he would appoint justices like Clarence Thomas and Antonin Scalia.

By his own account in 1985, Judge Alito entered law school “motivated in large part by disagreement with Warren Court decisions, particularly in the area of criminal procedure, the establishment clause, and reapportionment.”

Further clarifying his views on the Supreme Court’s past decisions regarding religion, in November 2005 he told his supporter, Sen. John Cornyn (R-Texas), that these rulings “were incoherent in this area of the law in a way that really gives the impression of hostility to religious speech and religious expression.”

Alito’s judicial record supports this statement. He disagreed with the majority of the 3rd Circuit when it decided that students could not include a prayer in their graduation programs simply because they had voted to have one.

He also argued that public school teachers could be forced to distribute materials of the Child Evangelism Project for their weekly after-school meetings. In contrast, the Supreme Court concluded that religious meetings may be held on school grounds only “where no school officials actively participate.”

As for a woman’s right to choose an abortion, Judge Alito’s views seem oblivious to the religious convictions of others. His hostility to the right to choose has been unwavering.

While working in the solicitor general’s office, Alito wrote a 17-page memo on using Thornburgh v. American College of Obstetricians and Gynecologists as an ” opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects.” He later expressed pride in his role in that case.

In Planned Parenthood v. Casey, he wanted to uphold a requirement that a woman notify her husband before obtaining an abortion, a proposition Justice O’Connor and the majority rejected, declaring, “A State may not give to a man the kind of dominion over his wife that parents exercise over their children.”

His strategy of pressing for more and more restrictions on Roe clearly became the ongoing strategy of the anti-choice movement — a movement that would restrict religious freedom by imposing one religion’s view on all women.

The United Synagogue of Conservative Judaism recently repeated its support for legislation “maintaining the legality and accessibility of abortion so that in those cases where our religious authorities determine that an abortion is warranted halachically, obtaining that abortion will not be hindered by our civil law.” It’s clear that as a Supreme Court judge, Alito would threaten this principle.

So, what is “good for the Jews?” It’s a Supreme Court committed to upholding the rights and liberties enumerated in the Bill of Rights, to upholding the letter and spirit of pluralism and to upholding basic values of inclusion and fairness.

The protections we seek as members of a minority religious group cannot exist in a vacuum, but only in the context of a larger society in which everyone’s rights and liberties are protected. For that reason, the National Council of Jewish Women urges all Jews and Jewish organizations to join with us in the fight to defeat Alito’s nomination to a lifetime seat on the highest court in the land.

Phyllis Snyder is president of the National Council of Jewish Women.