TV preacher Pat Robertson wanted to know why his favorite lawyer Jay Sekulow appeared so giddy.
“You have a smile on from ear to ear, Jay,” Robertson said to Sekulow, head of the American Center for Law and Justice, a Religious Right law firm founded by the televangelist. “Why?”
Sekulow was quick to respond.
“This is – everybody is using a baseball analogy – a grand slam,” said Sekulow.
It was Halloween, and only a few minutes earlier President George W. Bush at the White House had introduced Samuel A. Alito Jr., his nominee to replace retiring Justice Sandra Day O’Connor on the U.S. Supreme Court. Sekulow was happy to tell Robertson’s “700 Club” viewers why they should be pleased.
“If you look at the cases that Sam Alito has put forward as a judge for the last 15 years,” said Sekulow, “on the abortion issue, he clearly ruled in our favor. Even in the famous Casey case, he actually was the dissenting justice. So on abortion, absolutely fantastic. You look at the school prayer cases like the football game prayer – he has consistently ruled in our position. You look at the federalism cases, how he ruled there. So on and on it goes…. Just a fantastic person!”
Bush turned quickly to Alito, a veteran judge on the 3rd U.S. Circuit Court of Appeals, following a disastrous attempt to place his long-time confidant and lawyer Harriet Miers on the high court. Miers, who remains as White House counsel, drew the ire of Religious Right activists and movement conservatives who were lobbying the administration for a nominee openly opposed to reproductive rights, civil rights for gays and the separation of church and state.
Miers, who had never served as a judge, had an extremely thin record on constitutional issues. However, the press discovered some comments Miers made to a Dallas women’s group in which she appeared to support high court precedents on reproductive rights and school prayer. It was that speech that proved too much for Religious Right leaders, and on the day after its release, Miers withdrew her name from consideration.
Instead of chancing another messy battle with his far-right base of supporters over a Supreme Court nomination, Bush opted for appeasement. As The New York Times editorial page put it, the president took yet another opportunity to “pander to his right wing.”
Unlike the president’s first choice, Alito is a known quantity.
As The Times reported Nov. 1, legal scholars say Alito’s work on the federal bench has been “solidly conservative.” In “cases involving the great issues of the day – abortion, the death penalty and the separation of church and state – Judge Alito has typically taken the conservative side,” the newspaper reported.
Indeed, Larry Lustberg, a former federal prosecutor and long-time acquaintance of Alito’s, told the newspaper that if Alito were confirmed, a rightward tilt on the Court should be expected.
“Make no mistake,” Lustberg said, “he will move the court to the right, and this confirmation process is really going to be a question about whether Congress and the country wants to move this court to the right.”
The Washington Post the same day reported, “On some of the most contentious issues that came before the high court, Alito has been to the right of the centrist swing voter he would replace.”
John C. Yoo, a professor at Boalt Hall School of Law and former deputy assistant attorney general under John Ashcroft, told The Post, “With this nomination, Bush is saying ‘Bring it on!’ There is no effort to evade a clash with Senate Democrats. That’s why conservatives are so happy.”
National Public Radio’s long-time court reporter Nina Totenberg declared on a Nov. 1 broadcast that “if the 55-year-old New Jersey native is confirmed, it is widely expected that he will move the court quite dramatically to the right, not just because he’s a conservative, but because he’s a conservative star who’s widely admired for his intellectual brilliance.”
Robertson, Sekulow and other Religious Right leaders couldn’t be happier.
In his “700 Club” appearance, Sekulow crowed that Alito, a member of the ultra-conservative Federalist Society, might even overturn the decades-old test the federal courts have used to determine whether a government action violates the separation of church and state.
That standard, commonly referred to as the Lemon Test, holds that a law violates the First Amendment if it has a sectarian purpose, primarily advances or inhibits religion or creates an excessive entanglement between church and state. It has been used by the Supreme Court to invalidate government-sponsored prayers, Bible readings and other religious activities and displays in the public schools.
“But I tell you,” said Sekulow, “you just got the next vote to undo that test, without a question. If you look at his opinions and how he’s applied Lemon, he’s always come out on our position – on literature distribution and student-initiated prayer – consistently conservative.”
Many Religious Right leaders were quick to say they would spend large sums of money to promote Alito’s nomination. Only a day after the announcement, Tony Perkins of the Family Research Council said his group would spend at least $100,000 for television ads targeting first conservative Democratic senators and eventually others.
In a press statement announcing the pro-Alito campaign, Perkins said the ads would highlight “how the courts have become a serious threat to religious liberties. For the last forty years, the courts have chipped away at our religious liberties and chiseled away references to God in the public square.”
Perkins undoubtedly knew that Alito’s record from the 3rd Circuit supported government-sponsored religious displays.
One case revolved around a display in front of a Jersey City, N.J., government building. In 1994, a civil liberties group sued the city arguing that a menorah and a Christmas tree at city hall violated the separation of church and state. A U.S. district judge agreed and declared the display unconstitutional.
After the ruling, local officials got creative and added other symbols, including a crèche, large plastic figures of Santa Claus and Frosty the Snowman. The city also festooned the Christmas tree with Kwanzaa symbols. The U.S. district court, however, found the revamped holiday display unconstitutional, prompting the city to appeal.
Writing for the majority in a 2-1 ruling, Alito concluded that the “modified display” was not an affront to the First Amendment. In his 1999 ACLU of New Jersey v. Schundler opinion, Alito wrote that “government may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine.”
Alito also did not believe that the modified display was an attempt to undermine constitutional strictures.
“Under these circumstances,” he wrote, “the mere fact that city officials miscalculate and approve a display that is found by the federal courts to cross over the line is hardly proof of the officials’ bad faith.”
Judge Richard L. Nygaard issued a dissent, noting that an “addition of a few small token secular objects is not enough to constitutionally legitimate the modified display.”
A few years later, Alito issued a decision dismissing a legal challenge to another New Jersey holiday tableau. In 2000, Alito, writing in ACLU-NJ v. Township of Wall, found that the citizens who brought the case did not have standing to challenge the town’s display, which included a menorah, candy canes, snowman banners and a sign reading, “Merry Christmas Happy Hanukkah.”
FRC President Perkins’ enthusiasm for Alito was echoed by many Religious Right leaders, including some who dismissed Miers despite an aggressive White House campaign to sell her nomination by touting her strong ties to an evangelical church in Texas.
For example, Gary Bauer, head of American Values, was quick to complain about Miers but had a starkly different reaction to Alito, the 55-year-old father of two children who resides with his wife in Caldwell, N.J.
Bauer told NPR, “My heart jumped when I heard it, not because the president has done what the radical right wants, which is what some commentators have suggested, but because the president has fulfilled what he regularly promised during his campaigns, which was to give us nominees like [ultra-conservative Justices] Scalia and Thomas.”
Concerned Women for America, a high-profile far-right outfit, issued a plea for Miers to withdraw her nomination, but the group praised Alito, calling him “one of our top choices for the Supreme Court.”
Religious Right powerhouse James Dobson, who had to be persuaded by the White House to issue a thumbs-up for Miers, needed no such prodding this time.
Proclaiming himself “extremely pleased,” Dobson said he was especially encouraged that “liberal senators” and “leftist pressure groups” have been “lining up all day to scream that the sky is falling.”
The religious broadcaster was undoubtedly smitten by Alito’s hostility toward legal abortion.
Several reproductive rights groups issued statements deriding Alito for his dissenting opinion in Planned Parenthood v. Casey, in which the 3rd Circuit invalidated a 1989 Pennsylvania law that required women seeking abortions to notify their husbands. Alito thought the law should have been upheld.
“I cannot believe,” Alito wrote, “that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women.”
Although Dobson and other Religious Right figures needed little, if any, nudging to support Alito, an administration bloodied and still reeling from the fight over Miers, apparently felt compelled to do some reaching out.
The New York Times reported that on the morning the nomination was announced “White House officials began calling close conservative allies.” The newspaper detailed, for example, that top Bush political adviser Karl Rove called Richard Land of the Southern Baptist Convention, while Tim Goeglein, another important White House insider, called televangelist Jerry Falwell.
Americans United for Separation of Church and State was among the chorus of civil liberties and public interest groups that issued statements of concern about the new nominee. The Alito rulings that were so pleasing to the Religious Right were recognized by Americans United as attempts to further merge government and religion.
“The country deserves a Supreme Court justice who will protect the rights of all Americans, not kowtow to the demands of the Religious Right,” said Barry W. Lynn, Americans United executive director.
Americans United announced its opposition to Alito’s confirmation after an extensive examination of the nominee’s record. A report prepared by AU’s legal team and Florida State University law professor Steven Gey found ample reasons for alarm. The analysis showed that Alito, during his 15 years on the federal appeals court bench, had repeatedly issued rulings dismissive of church-state separation.
For example, in 1996, Alito joined three other 3rd Circuit judges in dissenting from a ruling that struck down a public high school policy allowing seniors to vote on whether to have prayer at graduation ceremonies.
In June of 1993, 128 students at Highland Regional High School voted for prayer, 120 voted for a moment of silence and 20 voted to have neither. Shortly after the balloting, a graduating senior sued the school district arguing that prayer before a school-sponsored event violates the separation of church and state.
In a 9-4 ruling in ACLU of N.J. v. Black Horse Pike Regional Board of Education, the 3rd Circuit agreed. The panel held that public school officials could not mask an unconstitutional action in a majority-rules process led by students. The school officials still maintained tight control of the graduation ceremonies, the court found.
“The First Amendment,” the majority wrote, “is a shield that prohibits the state from interfering with a person’s right to worship as he or she pleases. It is not a sword that can be used to compel others to join in a religious observance at a state-sponsored event.”
Alito, however, found that the school policy should have been allowed to stay in place. According to the dissent he joined, graduating seniors “could not” believe that the prayer would represent the “official opinion of the state.”
In two other cases, the nominee wrote in favor of more religious activities in the public schools.
Alito dissented in the 3rd Circuit’s 2000 C.H. v. Oliva decision, which dismissed a kindergartner’s complaint that school officials violated his constitutional rights when they removed his religious artwork from prominent display to a less conspicuous area. The majority’s ruling dismissed the case on technical grounds. Alito, however, wrote a dissent arguing that the court was wrong to not reach the constitutional questions.
“I would hold,” Alito wrote, “that discriminatory treatment of the poster because of its ‘religious theme’ would violate the First Amendment. Specifically, I would hold that public school students have the right to express religious views in class discussion or in assigned work….”
In 2004, Alito ruled that New Jersey public schools must allow Child Evangelism Fellowship to use school resources to distribute religious messages to students. Alito wrote in Child Evangelism Fellowship v. Stafford Township School that allowing the religious group access to public school communications tools “would not have constituted an endorsement of religion.”
In early November, only days into the confirmation process began, Alito told two senators during private meetings that he is troubled by some Supreme Court decisions that favor church-state separation.
His comments only added to concerns by Americans United and other public interest groups that Alito, if confirmed, would join Justices Antonin Scalia and Clarence Thomas in working to reverse long-standing church-state precedent.
Sens. John Cornyn (R-Texas) and Robert Byrd (D-W.Va.) told The New York Times they were pleased that Alito expressed empathy for the belief that Supreme Court decisions have gone too far in removing religion from the public square.
Cornyn said Alito gave him the “impression that the court’s decisions were incoherent in this area of the law that really gives the impression of hostility to religious speech and religious expression.”
Byrd also told the newspaper, which reported the story on Nov. 3, that he left his meeting with Alito feeling “very satisfied” that the judge recognized the Supreme Court had too often mistakenly barred government-sponsored religious activities.
Cornyn added that Alito actually discussed one particular high court ruling during their meeting. If the Texas Republican’s account is accurate, it is startling because most nominees to the high court refuse to discuss specific cases. According to Cornyn, a member of the Senate Judiciary Committee and strident critic of court rulings that support the separation of church and state, Alito willingly talked about a 2000 high court decision.
In Santa Fe Independent School District v. Doe, the Supreme Court invalidated organized prayer at school-sponsored football games. Cornyn said that Alito discussed the case with him and “did commiserate with me a little bit. I hope that he will be able to give the United States Supreme Court’s ruling some coherence, because frankly they are way out of step with what the founding fathers intended.”
The mounting debate surrounding the Alito nomination portends one of the most contentious battles over the make-up of the Supreme Court in at least a decade. Both sides are gearing up for conflict.
William Donohue, the often acerbic leader of the Catholic League, seemed to salivate over such a fight, telling WorldNetDaily that “Alito has united people of different faith traditions on the right.”
“Nothing brings people of faith together more than the culture wars,” Donohue declared, “and that is why traditional Catholics, evangelical Protestants and Orthodox Jews are already coming together in support of Samuel Alito.”
Falwell also appeared in a fighting mood. In his Oct. 28 “Falwell Confidential” e-mail to supporters, he said, “I think this may be a perfect time for a bare-knuckles political fight because the fate of our High Court is at stake.”
“I truly believe,” continued Falwell, “that President Bush’s political base will come to his aid in such a fight. I am confidant that his evangelical Christian supporters would be honored to go to battle with this man we helped elect to office.”
Southern Baptist leader Land joined Donohue and Falwell in expressing eagerness to support Alito’s nomination. Land dismissed observations that Alito would be the fifth Catholic on the high court, giving members of that denomination a majority on the nation’s highest bench.
“I’ve got a lot more in common with Pope John Paul as a Baptist than I do with Jimmy Carter or Al Gore, who are both Southern Baptists,” Land told the Religion News Service.
The Religious Right’s universal and ebullient support for Alito was troubling to at least one member of the Senate Judiciary Committee. Sen. Patrick J. Leahy (D-Vt.), ranking Democrat on the committee, told the media moments after a private meeting with Alito that he was disconcerted by the president’s apparent bending to his far-right base.
“Why is it that the far right said [Miers] had to be withdrawn because they could not be sure how she would vote, but these same people within minutes of his nomination strongly favored him?” Leahy told reporters.
Americans United’s Lynn said Alito’s record on church-state disputes renders his nomination unacceptable and senators should refuse to confirm him.
“Alito seems eager to join the court’s most extreme right justices in dismantling the wall between church and state,” said Lynn. “That First Amendment principle has long protected and fostered religious liberty in this country. It appears also that Alito is on the farther reaches of legal jurisprudence on a number of important fundamental American rights. Senators should ask the president to send them a nominee not beholden to an extreme ideology.