Marjorie Cohn: Alito Threatens Dr. King's Dream

Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.
-Dr. Martin Luther King Jr., Letter from a Birmingham Jail

During his confirmation hearing for the Supreme Court, Samuel Alito Jr. pledged allegiance to the principle of one man-one vote and denied he was a bigot. It is astonishing that these issues even entered our national discourse in 2006. But it is Alito's record, both as a member of the Reagan administration and as a judge on the Court of Appeals, that raises allegations of racism. And it is that same record that betrays Dr. King's values and threatens the future of civil rights in this country if Alito is confirmed to the high court.

In his 1985 application for a job in the Reagan Justice Department, Alito noted that he became interested in constitutional law "in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment." The reapportionment cases that upset him were the landmark decisions that affirmed the bedrock principle of our democracy: one person-one vote.

Fred Gray, the veteran civil rights lawyer who represented Dr. King and Rosa Parks, testified at Alito's hearing. "As one who has been in the trenches and still is in the trenches," Gray told the senators, "I appear today to attest to the tremendous importance of the reapportionment cases - those cases decided by the Warren Court, one of which I actually litigated and was my brainchild, Gomillion versus Lightfoot ... The cases illuminate the inequities of mal-apportionment which deprived African Americans of voting strength across the nation. In my view, there is no more important body of law than that generated in the field of voter registration and in civil and human rights." Gray testified, "I am troubled, extremely troubled, by Judge Alito's comments made in his application, notwithstanding his testimony before this committee ... A nominee to the Supreme Court who has a judicial philosophy that's set against the Warren Court and against the reapportionment cases is in effect saying that he would turn the clock back."

Indeed, when Alito became a judge, he ruled against minority voters who claimed a school board voting plan illegally diluted their voting strength. If he is confirmed, Alito will vote on a series of cases alleging minority vote dilution now pending before the Supreme Court.

Moreover, certain important provisions of the Voting Rights Act that have enhanced the opportunities for African Americans and other minority groups to vote effectively are set to expire next year, unless Congress renews them. These special provisions allow for significant federal oversight of state and local voting functions for jurisdictions deemed to have the worst and most persistent histories of voting discrimination against their minority populations. This heightened oversight is intended to identify and prevent proposed voting changes that worsen the position of minority voters, or to deter covered jurisdictions from proposing such voting changes.

For example, section 5 of the act requires certain covered states and political subdivisions to obtain federal or judicial preapproval or "preclearance" of any voting law changes or practices before they can legally take effect. This oversight has resulted in the detection and prohibition of several harmful voting laws and practices. Appeals of district court decisions on these preclearance provisions go directly to the Supreme Court.

Alito will have the opportunity to rule on section 5 preclearance issues, and may also review the 2007 congressional renewal of the act's special provisions.

Besides his astounding statement opposing reapportionment, Alito also proudly touted his membership in the Concerned Alumni of Princeton in the same job application. CAP was formed to maintain Princeton as a white male college. It complained that increased numbers of "women and minorities will largely vitiate the alumni body of the future."

In spite of his avowed pride in being a CAP member, Alito denied any memory of the group after he was nominated for the Supreme Court. His amnesia is particularly surprising in light of his vast recall of the details of the myriad cases on his court's docket.

Alito's judicial record in civil rights cases corroborates his bias. In all split decisions in cases alleging race and sex discrimination, Alito voted against the claimants. His dismal record led the NAACP Legal Defense and Education Fund, the Hispanic Caucus Civil Rights Task Force, and the National Bar Association to oppose Alito's confirmation.

The mainstream media has fixated on Martha Alito's tearful exit from the hearing after Republican Senator Lindsey Graham's defensive rhetorical question about whether her husband was a "closet bigot." Unfortunately, that dramatic film clip obscured the merits of the issue.

Samuel Alito's record on and off the bench shows a consistent pattern of bigotry - a pattern that promises to continue once he becomes a justice of the Supreme Court. Senators from both parties who truly seek to realize the dream of Dr. Martin Luther King Jr. have a solemn obligation to filibuster and defeat Alito's nomination.

Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists.

© Scoop Media