JURIST Guest Columnist Sherrilyn Ifill
of the University of Maryland School of Law says that US Supreme Court nominee Samuel Alito has some serious explaining to do over positions on civil rights issues he took as a young and ambitious lawyer in the Reagan administration...
hen the draft records of President Bill Clinton were made public during his 1992 run for the presidency, a letter written during the Vietnam War by the then-twenty-something-year-old Arkansan to his draft board surfaced. In it the future president explained that he didn’t want to dodge the draft outright because to do so might imperil his “political viability.” To most Americans, there was something chilling and unsettling about hearing such a young man during the heady and free-spirited days of the 1960s, calculate how his position on the war (where no doubt many of his boyhood friends were fighting and dying) would affect his political future. But the calculation in that letter demonstrated that as even as a young man Clinton had been what as a Presidential candidate he was showing himself to be – a committed, skilled and ambitious politician who kept his eye on the prize. In this sense, voters could take Clinton’s youthful display of ambition as confirmation that the soon-to-be President was hard-wired to be a master politician.
But when a nominee for the U.S. Supreme Court suggests that earlier, potentially problematic positions he advocated as a young lawyer reflected his desire to get ahead in his career, we should not be so sanguine. We should be particularly concerned when the positions articulated earlier in the nominee’s career suggest hostility to the promotion of civil rights or to the vigorous enforcement of civil rights laws.
Judge Samuel Alito is the third consecutive Supreme Court nominee to try and explain away potentially troublesome positions on civil rights issues as reflecting either loyal support for the views of the Administration in which they served, or an embellishment designed to advance their political careers. Fourteen years ago Judge Clarence Thomas assured members of the Judiciary Committee that they needn’t worry about earlier positions he’d taken on civil rights and other matters as a member of the Reagan Administration. As a judge, Thomas contended that he’d “stripped down like a runner,” leaving behind earlier, more strident political views to take on the neutrality of a judge.
This past summer nominee (now Chief Justice) John Roberts explained away a joke he’d made at the expense of Mexican Americans and comments he’d made about women working outside the home in internal memoranda he’d written while a Department of Justice lawyer, as part of his effort to ensure that memos he wrote were read and received positively by his superiors and colleagues. If telling a joke (even an off-color one) would enliven the atmosphere of the office and help get his substantive points across, then why not? Roberts also explained away his firmly articulated positions against an expansive interpretation of the 1982 amendments to the Voting Rights Act as merely reflective of the position of the Administration in which he served.
Now Judge Alito explains statements he made in a letter accompanying an application for a job as Deputy Attorney General in 1985 as the product of his ambition. In the letter accompanying his application, Alito derided what he termed “racial quotas” and expressed “particular pride” in having taking positions as a Department of Justice lawyer calculated to undermine what he regarded as “disturbing” decisions of the Warren Court. “I was trying to get a job, a political job,” Alito reportedly told Sen. Dianne Feinstein several weeks ago. Judge Alito’s 1985 decision to keep his nominal membership in the organization Concerned Alumni of Princeton (CAP) on his resume, is presumably also covered by the “ambition” explanation. CAP publicly denounced what its members regarded as the “lowering of standards” in Princeton’s admissions policies, ostensibly designed to bring more women and racial minorities into the University. The belief that racial minorities and women were changing Princeton (to the University’s detriment) was apparently precisely what the alumni who belonged to this organization were most concerned about, a fact that reportedly would have been known by the conservative cognoscenti
vetting resumes in the Reagan Administration.
No issue has been important and more divisive in American law and life than civil rights. For this reason the American public has a right to know that any nominee for our Supreme Court understands that the post-Civil war amendments to the Constitution and the passage of mid-20th century civil rights laws reflect this country’s commitment to erasing the stain of slavery and the enduring power of racial discrimination in public life. When a nominee’s record suggests that he holds belief that would inhibit a robust interpretation of civil rights laws, then it is the obligation of the Judiciary Committee to subject that nominee to vigorous and pointed questioning to determine where the nominee stands on these issues. More importantly, the American public must know whether the nominee understands the consequences for this nation of reversing the halting progress we’ve made towards fulfilling the promise of the 13th 14th, and 15th amendments to the Constitution.
That Judge Alito has cited his own ambition as the reason for the statements he made in his 1985 job application, should make the Committee even more vigorous in its questioning. Why should we believe that Judge Alito is less inclined today to tailor his statements about civil rights to appeal to the hiring team on the Judiciary Committee, than he was to appeal to the vetting team in the Reagan White House in 1985? Justice Thomas’ record on the Court has given the Committee reason to be cynical. Despite Thomas’ confirmation hearing vow to “strip down like a runner,” his hard-right jurisprudence on civil rights matters over the past 14 years has been alarmingly consistent with the positions advocated in his pre-judicial career in the Reagan Administration.
In the upcoming confirmation hearings, the Judiciary Committee must not give short shrift to civil rights questions. Judge Alito has some explaining to do. Neither platitudes about the purported magical powers of the black robe, nor self-serving nods to youth and ambition should satisfy the Committee. Nor should the Committee be moved by Judge Alito’s recent account of his father’s 1935 stance against discrimination on a college basketball team. How is this story responsive to the public’s legitimate concerns about Judge Alito’s interpretation of our civil rights laws? Are we simply meant to believe that if the old adage is true and the apple doesn’t fall far from the tree, we have no reason to be concerned about how Judge Alito will approach civil rights laws? Certainly a 55 year-old lawyer and judge of Alito’s stature should be able to point to something in his own professional record or life, rather than his father’s, to demonstrate his commitment to non-discrimination and civil rights. The American public has a right to know where this nominee stands on bedrock civil rights questions. Sherrilyn Ifill is a civil rights lawyer and law professor at the University of Maryland School of Law