Samuel Alito

View The Educated Pro-Lifer's Guide to the Alito Supreme Court Nomination Hearings

On October 31, 2005, President Bush nominated Judge Samuel Alito to fill
the vacancy created by the retiring Supreme Court Justice Sandra Day O’Connor.  Judge Alito is considered to have a conservative “originalist” judicial philosophy.  Here is what we know: 

He found informed consent and other abortion regulatory provisions to be constitutional by applying the “undue burden” standard created by Justice Sandra Day O’Connor.  While he was required to use this standard in evaluating abortion regulations, as a Circuit Court Judge, there is no indication of whether he thinks this is a valid standard and whether, as a Supreme court Justice, he would be in favor of continuing this method of evaluating abortion laws the states adopt, such as parental notice.  Justices Scalia & Thomas, for example, have written in favor of using the rational basis test, which would permit far greater regulation than the undue burden standard.  Planned Parenthood v. Casey, 947 F. 2d 682 (3d Cir. 1991)

He found New Jersey’s partial birth abortion ban to be unconstitutional, based on the Supreme Court decision in Stenberg v. Carhart.  As he said in his concurring opinion, the Supreme Court left the Third Circuit no choice about what the decision had to be.  Planned Parenthood of Central New Jersey v. Farmer, 220 F. 3d 127 (3rd Cir. 2000)

Judge Alito wrote a concurring opinion upholding the rejection of a challenge to a New Jersey wrongful death law that allowed parents to sue over a child’s death but not a fetus who was the victim of an abortion.  He said:  “I think that the court’s suggestion that there could be ‘human beings’ who are not ‘constitutional persons’ is unfortunate.  I agree with the essential point that the court is making:  that the Supreme Court has held that a fetus is not a ‘person’ within the meaning of the 14th Amendment.  However, the reference to constitutional nonpersons, taken out of contest, is capable of misuse.”  Alexander v Whitman (95-5414 May, 1997)

Judge Alito concurred in a decision which said that states could not put restrictions, such as police report requirements for rape-related abortions, on Medicaid-funded abortions if the result was to deprive indigent women of publicly-funded abortions.  Blackwell v Knoll (94-1954, July, 1995)

These cases show only that Judge Alito knows how to apply precedent developed by the United States Supreme Court.  They do not tell us how he would vote on Roe & Doe.  

We can be sure that his hearing will not reveal this either.  According to Senator Specter, Judge Alito has indicated that he does believe that the constitution protects a right to privacy and understands the importance of longstanding precedents.  Senator Specter said:  “He used the term sliding scale and said that when a case had been reaffirmed many times it has extra – I think he said weight – as a precedent, reaffirmed by different courts, nominees appointed by different presidents.”  (New York Times, 11/1/05)

Some of Judge Alito’s other (non-abortion) decisions indicate a respect for the actions of state legislatures.

It therefore becomes even more important that we find out as much as we can about Judge Alito’s views on precedent and privacy in order to make a determination about whether it is likely that he will at least be open to the possibility of overruling Roe & Doe.  He seems to start with the right philosophy of the role of a judge but, as with Chief Justice Roberts, it’s not clear whether his conservative judicial approach will lead him to preserve Roe & Doe as a “super” precedent.  We must develop the right questions, inspire our Senators on the Judiciary Committee to ask them, and carefully evaluate the answers.

In addition, it is important to do everything we can to expose the lie behind the claim that Roe is some kind of “super” precedent that is immune to overruling.  It is not.  It has not been upheld 38 times, as some have stated, but three (3) times.  We can’t let Roe’s supporters get away with this deception and thereby try to further entrench Roe in culture & law. (More information on this issue is available on (www.lifeleadernetwork.com).

Click here to read Judge Alito's opinion on Chen v. United States

Harriet Miers

In 1989 Harriet Miers answered several questions regarding her stance on abortion. Click here to review her answers.

Background Information on Harriet Ellan Miers:
Age 60
Unmarried
Southern Methodist University School of Law, 1967–1970, JD, May 24, 1970
Southern Methodist University, 1963-1967, BS in Mathematics, May 21, 1967
Currently:  Counsel to the President, The White House, Washington,
D.C. 20502.
[MORE]

Judge John Roberts
Judge John Roberts was nominated for Chief Justice of the Supreme Court on Monday, September 5, 2005.  Following is a brief outline of John Roberts' background.

Age 50
Married, two adopted children
Roman Catholic
Graduate, summa cum laude, Harvard College
Graduate, magna cum laude, Harvard Law School
Clerked for Judge Henry Friendly, U.S. Court of Appeals for the Second Circuit
Clerked for U.S. Supreme Court Justice William H. Rehnquist
Associate White House Counsel, Reagan administration
Principal Deputy Solicitor General, 1989-93
CURRENTLY:  Judge, U.S. Court of Appeals for the District of Columbia Circuit

Potential Nominees

On July 1, 2005 U.S. Supreme Court Justice Sandra Day O'Connor announced that she was retiring from the Court as soon as a nominee was confirmed by the U.S. Senate.  President Bush nominated Judge John Roberts to replace Justice O'Connor but withdrew that when Chief Justice Rehnquist passed away.  The President then nominated Judge Roberts for the Chief Justice position.  The President has not yet announced who he is nominating for Justice O'Connor's position.  Following is a list of pototential Supreme Court Justice nominee to replace Justice O'Connor:

Samuel A. Alito, Jr. - a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia who has been nicknamed “Scalito” because he has views similar to those of conservative Supreme Court Justice Antonin Scalia.

He upheld a Pennsylvania pro-life law that the Supreme Court overturned in Planned Parenthood v. Casey.  He wrote an opinion in that case arguing for a standard that would permit virtually any restriction on abortion.  He is from New Jersey.

Janice Rogers Brown - the first black woman to serve on California’s Supreme Court.  Her nomination to a federal appeals court has been blocked by Senate Democrats.

In 1997, she issued a well-researched dissent in a case where the California Supreme Court overturned a pro-life law requiring abortion facilities to obtain parental consent before performing an abortion on a teenage girl.

Brown accused the court of abrogating the constitutional rights of parents, described the court’s thinking as circular, and called the case “an excellent example of the folly of courts in the role of philosopher kings.”

 “When fundamentally moral and philosophical issues are involved and the questions are fairly debatable,” Brown wrote, “the judgment call belongs to the Legislature. They represent the will of the people.”

She also dissented in a decision requiring Catholic Charities to pay for contraception coverage in employee health insurance plans.  The decision concerns pro-life groups because it could lead to a requirement that abortion be covered as well.

Brown has also garnered the support of the California voters.  In 1998, 76% of voters decided to keep Brown on the bench in their state, the highest percentage of supporting votes in that election.

Miguel Estrada - a native of Honduras whose nomination to an appeals court was also blocked by Democrats.  He’s a former clerk to Supreme Court Justice Anthony Kennedy.

Emilio Miller Garza – judge on the 5th U.S. Circuit Court of Appeals in New Orleans.  Bush’s father, the first President Bush, considered the Hispanic judge a Supreme Court prospect. 

His opposition to abortion is beyond question.  He wrote two separate opinions explicitly criticizing Roe v. Wade and suggesting it be overturned.

Alberto R. Gonzales – White House counsel and Bush confidante.  The choice of Mr. Gonzales as attorney general may be part of the political strategy to bolster his credentials with conservatives and position him for a possible Supreme Court appointment.

His tenure as attorney general would allow him to demonstrate his reliability to conservative leaders, many of whom say they are unsure of his views on issues like abortion and affirmative action.

Edith Jones – a judge on the 5th U.S. Circuit Court of Appeals in New Orleans and former general counsel for the Texas Republican Party.  Bush’s father considered her for the high court.  She was considered for the Supreme Court seat that eventually went to Clarence Thomas.

If pro-life advocates are looking for a justice who strongly opposes Roe v. Wade, Jones should be a favorite.

When the 5th Circuit denied a request in October by Norma McCorvey to approve her motion to overturn the Roe v. Wade ruling, Judge Jones issued an opinion blasting the Supreme Court’s opinion in Roe and saying it needs to be re-examined.

She called Roe an “exercise of raw judicial power,” and cited evidence McCorvey presented showing abortions hurt women.

Jones, a Reagan nominee, wrote that the “[Supreme] Court’s rulings have rendered basic abortion policy beyond the power of our legislative bodies.”

“The perverse result of the Court’s having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter,” Jones added.

Jones chided the nation’s high court for being “so committed to life’ that it struggles with the particular facts of dozens of death penalty cases each year,” but failing to grasp the fact that abortions destroys the lives of unborn children.

“One may fervently hope that the court will someday acknowledge such developments and re-evaluate Roe and Casey accordingly,” Jones said of the 5000 pages of evidence with affidavits from over 1000 women who have been harmed by abortion.

J. Michael Luttig – put on the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, by President Bush’s father.  He clerked for Scalia when Scalia was an appeals court judge.

He sits on the same court as Judge Wilkinson.  Judge Luttig’s relative youth would also make him attractive to Republicans, who tend to prefer younger candidates who will have longer careers and thus more influence.

He helped the first President Bush win the appointment of Clarence Thomas to the nation’s high court.

Luttig is widely considered one of Bush’s top judicial prospects, especially given his young age, 50, and his ability to shape the direction of the court for years to come.  He is considered the most conservative judge on one of the most conservative appeals courts in the nation.

He is regarded as a threat by abortion advocacy groups because he opposes abortion.

In 1998, Luttig issued an emergency stay of a lower-court order that blocked a new Virginia law banning partial-birth abortions.  Eventually, Luttig and the 4th Circuit allowed the pro-life law to remain in place, but were overruled by the U.S. Supreme Court and the state’s law was struck down.

However, should Luttig be selected for the Supreme Court, he would side with the four judges who comprised the minority in a 2000 case striking a Nebraska partial-birth abortion ban.  The legal battle over the federal ban on partial-birth abortions is headed to federal appeals courts and will likely reach the Supreme Court.

Theodore B. Olson – who was Bush’s solicitor general until this summer and represented him in the 2000 Bush v. Gore case.  Olson’s wife, Barbara, was killed in the Sep. 11 terrorist attacks.

Larry Thompson – who was deputy attorney general and the Bush administration’s highest-ranking black law-enforcement official until he quit in 2003 to join a think tank, Brookings Institution.  He is a longtime friend of Justice Clarence Thomas.

He was a former deputy attorney general who is now the general counsel of PepsiCo in Purchase, N.Y.

James Harvie Wilkinson III – judge on the 4th U.S. Circuit Court of Appeals and author of a decision that gave the government broad authority to hold U.S. citizens as enemy combatants without constitutional protections.  The ruling was overturned by the Supreme Court.

He sits on the federal appeals court in Richmond.  He was a protégé of the late Justice Lewis F. Powell, who was widely admired.  Although Judge Wilkinson is opposed to abortion, he may be palatable to some Democrats because of his strong environmental and First Amendment record.

He voted to uphold a state law allowing parents to know when their teenage daughters were considering an abortion.