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In an attempt to take the media's mind of their runaway Scooter (not to mention Harriet, Katrina and Iraq) and to shore up his last remaining political stronghold -- the ultra conservative religious right-wing -- President Bush today ignored my suggestion to find a Hispanic John Roberts in drag and wasted no time in  nominating Samuel Alito to the Supreme Court. Generally thought to be to the right of both Rehnquist and Scalia (hence the nickname, Scalito), Alito's record seems assured to incite major partisan warfare, possibly culminating in a filibuster and the long-feared "nuclear option."

Most of the discussion about Alito will focus on how he will respond to a challenge of Roe v. Wade, but as everyone from David Sirota to the National Association of Manufacturers agrees, the real business of the Court is business. And, here at Confined Space, as always, we want to know what a Scalito nomination means for workers and for workplace safety and health. Alito doesn't seem to have any decision directly bearing on the OSHAct (or on environmental laws), but there are indications from other decisions.

Alito hasn't worked in the private sector, so we don't know as well as with  John Roberts or Harriet Miers what to what extent he sold his soul to corporate America. He has been on the court for years, however, so we have a pretty good idea of where he comes down on a number of issues -- and he can't claim that he was just representing his clients.

On the whole, according to (long, technical) papers put together by the Alliance for Justice  andPeople for the American Way, many of Alito's decisions, if upheld, would have placed impossible burdens on victims of race and sex discrimination who are attempting to prove their claims.
Specifically, according to Think Progress:

ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by "immuniz[ing] an employer from the reach of Title VII if the employer's belief that it had selected the `best' candidate was the result of conscious racial bias." [Bray v. Marriott Hotels, 1997]

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito's dissent was so restrictive that "few if any...cases would survive summary judgment." [Nathanson v. Medical College of Pennsylvania, 1991]

Alito's record also seems to put the Family Medical Leave Act in jeopardy.  According to Angry Bear, Alito found
that the FMLA was unconstitutional because there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy:

Notably absent [from the FMLA] is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.

...Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional.

A Supreme Court opinion, authored by William Rehnquist, overturned Alitos' ruling, finding it deeply flawed.  Rehnquist
cited the extensive evidence that was presented during the debate about the FMLA in Congress, and that clearly documented the pervasive discrimination implicit in unregulated family leave policies. Furthermore, Rehnquist argued that the FMLA was an entirely appropriate remedy to this subtle form of discrimination.
Most troubling, however, is Alito's identification with the theories espoused by the so-called "Constitution in Exile" group (which I've written about here, here,  and here which argues that the most important rights are economic rights, particularly the right to property, and anything that take away those rights -- such as environmental or workplace safety laws -- are, or should be, unconstitutional. And I quoted University of Chicago law professor Cass Sunstein, warning that "many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional."

As the New Republic's Jeffrey Rosen wrote earlier this year (subscription required),

What should be far more troubling to Senate Democrats, however, is Alito's 1996 dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns. Applying the logic of the Constitution in Exile for all it's worth, Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce--therefore, Congress has no right to regulate it. Alito's colleagues criticized him for requiring "Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute." His lack of deference to Congress is unsettling.
Alito's ruling in this case even caused some conservatives to do a double-take:
Broad interpretations both of federalism and the Interstate Commerce Clause are considered the heart of a vast number of civil rights laws, discrimination laws and worker protections. And the fact that Alito, in the medical leave case, took a more conservative view of congressional power than even Rehnquist should give pause to liberals, said Eric Maltz, of Rutgers University School of Law.

Maltz said the machine gun case involves a far more conservative position than that of Roberts, whose views of interstate commerce became controversial because of an opinion involving California toads.

"Toads aren't part of interstate commerce, but machine guns are," said Maltz, himself a conservative. "I think liberal interest groups should really worry about that."

And how far is it from "no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce" to "no empirical evidence that deaths and injuries in the workplace increase medical costs that substantially affect commerce," particularly considering that even Rehnquist was highly critical of Alito's attention to the evidence in his decision about the FMLA?

Regarding environmental issues, Earthjustice has found a decision by Alito, and guess what, it's bad. Alito attempted to make it more difficult to hold polluters accountable when they fouled water supplies:

In Public Interest Research Group (PIRG) v. Magnesium Elektron (MEI), Judge Alito joined in a 2-1 ruling gutting citizens' access to courts under the Clean Water Act. Although the Act authorizes "any citizen" to bring a "civil enforcement action" against alleged polluters, the Third Circuit ruling declared that PIRG did not have standing to sue because it had not demonstrated that MEI's pollution resulted in serious harm to the environment (reversing a rare $2.6 million fine handed down by the trial court for MEI's violations of the Act). The majority concluded that the Constitution denied Congress the authority to pass a law allowing citizens access to courts in these circumstances. Three years later, the Supreme Court essentially reversed and rejected Judge Alito's analysis, ruling (in a 7-2 decision over a heated dissent by Justice Scalia) that "the relevant showing... is not injury to the environment, but injury to the plaintiff." (Friends of the Earth, Inc. v. Laidlaw)
It's hard to tell how the politics of this nomination will play out -- especially concerning labor and business issues -- but it's already entering at least one 2006 Senatorial race. Sherrod Brown, who is running against Ohio Republican Senator (and Senate Judiciary Committee member)Mike DeWine
voiced disappointment with Bush's Supreme Court pick. If he were a Judiciary Committee member, like DeWine, Brown said, he would want to know more about Alito's positions on worker rights and the environment.
To sum up, this is serious stuff. To quote myself earlier this year:
What does all of this mean for the rapidly approaching national struggle over Bush's court nominations and the filibuster battle that will accompany it? It means that we need to make the American people know what's at stake -- nothing less than the advances ths society has made over the past 100 years. Not just the fate of legal abortion, but also the fate of workplace safety, the environment, minimum wage laws, consumer wage laws, the 8-hour day, child labor prohibitions -- in other words, issues that strike at the very heart of 20th and 21st century American values.

Originally posted to jbarab on Mon Oct 31, 2005 at 09:38 PM PST.

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