Why I Oppose the Samuel Alito Nomination

Much has already been said about the nomination of of Judge Samuel A. Alito Jr. to the U.S. Supreme Court. He has been uniformly praised by conservatives and for the most part has been derided by liberals. Rush Limbaugh, in my new favorite quote, said:

This is fabulous. We've got a male. We have a married male. He's European. He is anathema to the libs on this, folks. He is anathema to them. The exact opposite of what they were hoping for, and this is fabulous.

Liberals, on the other hand, have most derided Alito for his apparent anti-abortion stances. He dissented, for instance, in Planned Parenthood v. Casey before it reached the Supreme Court. That was the case that upheld Roe v. Wade. I really hope this confirmation process does not revolve entirely around abortion, however. Even if Judge Alito would vote to overrule Roe, there would still be a 5-4 majority in favor of upholding it (Kennedy, Ginsberg, Breyer, Souter, and Stevens). I strongly doubt that it will ever be overruled, though it may be weakened by subsequent decisions. Most importantly, though, unlike what many people appear to believe, the right to an abortion is not the major issue for the U.S. Supreme Court.

I am far, far, more concerned about other issues on which Judge Alito has ruled. Judge Alito, I believe, has a dangerous view of the Commerce clause. For instance, Judge Alito ruled that the Family and Medical Leave Act ("FMLA") is unconstitutional in a case called Chittister v. Department of Community and Economic Development. The FMLA provides that employers must give a certain class of employees leave "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." Judge Alito felt that the FMLA was an unconstitutional extention of Federal power on the States. The U.S. Supreme Court later ovverruled Alito's judgment in Nevada v. Hibbs, which upheld the FMLA.

Such a narrow view of Federal power is especially dangerous, not only for employment discrimination cases discussed above, but also puts Federal civil rights and environmental protection legislation on shaky grounds. I'd like to draw your attention to a little-known case decided on January 21, 2004, called Alaska Department of Environmental Conservation v. Environmental Protection Agency. That case involved whether the EPA could overrule a state's determination about whether a company violated the Clean Air Act ("CAA"). Alaska had decided that Teck Cominco Alaska, Inc, who operated a zinc concentration mine, had complied fully with certain of the CAA's environmental regulations. The EPA disagreed and brought the action to enforce the CAA. By a 5-4 majority, the U.S. Supreme Court ruled that the EPA can enforce the CAA, and therefore all other environmental regulations, in this way. As is often the case, Justice Sandra Day O'Connor was the deciding vote for the majority.

If the case went the other way, which would be quite possible with Alito replacing O'Connor, the EPA would be virtually shut down. If states could make their own determinations about environmental regulations without regard to the EPA's judgments, states could easily cascade down their environmental regulations in order to attract more businesses into their state. That would lead to a race to the bottom in which states gradually remove their environmental protections in order to compete with other states for the businesses that provide jobs for their citizens. The EPA would be virtually powerless to stop this erosion of years of progress in creating environmental protections. Disasterous consequences to the environment would follow.

For these reasons, I strongly oppose the Alito nomination.