Would a Justice Alito over-turn MURRAY/ABINGTON and other crucial First Amendment precedents? Arlen Specter wants to know...

apers released Wednesday by the National Archives about Supreme Court nominee Samuel Alito are focusing renewed attention over where the prospective justice stands on key First Amendment cases involving school prayer and free exercise of religion.

   The files are likely to fuel the already passionate political debate about Mr. Alito, and what they reveal about his judicial philosophy and temperament. They also have contributed to heightened speculation over whether Alito, a judge on the U.S. Circuit Court, would vote to MURRAY v. CURLETT/ABINGTON TOWNSHIP overturn earlier SCOTUS decisions like and ENGEL v. VITALE which helped to end mandatory prayer and Bible verse recitation in public schools, and support legal "carve outs" exempting activities of religious groups from judicial scrutiny or "generally applicable" statutes.

   Since late November, hundreds of pages released from the Archives have revealed Alito to be a strident ideologue criticizing the "one person, one vote" principle and malapportionment in electoral districts; opposed to the notion of a constitutional "right to privacy" embodied in the ROE v. WADE decision legalizing abortion; and a strategic planner for defending and implementing warrantless wiretaps.

   But equally disturbing is a statement Alito penned in 1985 as part of his resume while seeking a position as U.S. Assistant Attorney General. He described the early influences that interested him in government and politics:

"In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decision, particularly in the areas of criminal procedure, the Establishment Clause and reapportionment."

   Alito then went on to mention his admiration for law professor Alexander Bickel (1924-1974), a leading constitutional commentator and advocate for stern "judicial restraint." Bickel was a vociferous critic of the Supreme Court led by Chief Justice Earl Warren, and even tasked the holding in BROWN v. BOARD OF EDUCATION which outlawed racial discrimination in public schools. He was also a supporter of what he termed "the passive virtues" of judicial decision making, namely, a reluctance to decide cases on substantive grounds if other, narrower rationales could be found to render a decision.

   This has a growing roster of critics wondering about Samuel Alito and his fitness to serve on the nation's highest court.

    ¶       Complicating the Alito appointment is word that the White House has been advising its stable of potential Supreme Court nominees to disown their own earlier writings and opinions. That revelation came from an unlikely source, associate deputy attorney general Bruce Fein who in a Washingtonpost.com column dated December 18, 2005, attributed this strategy to a "misreading (of) Robert H. Bork's 1987 shipwreck." The reference is to the acrimonious Capital Hill battle over Bork's nomination to the high court where the nominee's own background, paper trail and record of brash statements resulted not only in his defeat, but the introduction into the American political vernacular of the term "Borked."

   Noted Fein, "According to senators whose statements have been denied by neither the White House nor the (Senate Judiciary) Committee, Alito has distanced himself from his own writings assailing ROE and a cluster of dogmas dear to Democrats..." Instead -- or so goes the new strategy -- earlier memoranda, other writings and statements were simply a ruse to curry favor with superiors and advance Alito's already skyrocketing legal career.

   It is a strategy, noted Fein, "akin to Thomas Jefferson's disavowing of the Declaration of Independence to win a seat on the British Privy Council..."

    ¶       Alito's position in respect to religion in the public square and the Establishment Clause is, by most criteria, fairly clear. As a Court of Appeals judge, he favored "student-led" prayer at public school graduation ceremonies, and sided with Muslim police officers over departmental regulations banning beards, and an American Indian who used bear parts as part of a religious ceremony. Bloomberg News writer Greg Stohr noted that throughout his tenure on the federal bench, Alito, now 55, "supported religious practice at almost every level ... whether it meant lowering the barrier between church and state..."

   Stohr adds that if confirmed, Alito would "give religion its most sympathetic ear on the high court," and like Justices Scalia and Thomas, "would limit the scope of the constitutional ban on establishment of religion."

   Douglas Laycock, professor of law at the University of Texas, confirms this portrait of Mr. Alito noting, "His establishment clause opinions are very deferential to government support for religion."

    ¶       All of this has generated concerns about how Alito might decide First Amendment cases. Advocacy groups, including American Atheists, have been working to persuade members of the Senate Judiciary Committee to "grill" Alito on several pivotal questions when confirmation hearings begin on January 8, 2006. They include:

-- What standards would you use in determining whether government action violated the Establishment Clause of the First Amendment?

-- Do you concur with Justice Sandra Day O'Connor that one crucial Establishment Clause test is whether persons of a different religion or no religion at all feel like "outsiders" who are being excluded from the general community?

-- Should government provide financial funding to faith-based programs without a heightened requirement that such money be used exclusively for secular purposes only?

-- Should government be allowed to provide financial subsidies to pervasively sectarian groups without requiring that those agencies not discriminating in hiring practices on the basis of religion?

-- Do you support the standards embodied in the "Lemon Test" (LEMON v. KURTZMAN) when determining whether or not a particular government action violates the Establishment Clause portion of the First Amendment?

-- Do you support the concept of "stare decisis" (standing on precedent) in cases involving the Establishment Clause such as ENGEL v. VITALE and MURRAY v. CURLETT/ABINGTON TOWNSHIP v. SCHEMPP in respect to unison prayer and Bible verse recitation in public schools?

-- What is your opinion of "legal carve-outs" that would remove certain actions by the legislative branch or local/state government from judicial scrutiny when they involve "the peoples' right to acknowledge God" through display of religious monuments in courthouses and public plazas?

-- What is your opinion of the "compelling interest/least restrictive means" test in respect to legislation as the Religious Land Use and Institutionalized Persons Act? What standards and guidelines would you use to see if RLUIPA and similar legislation, if contested, violated the Establishment Clause separation of government and religion?

   On December 13, 2005, Sen. Arlen Specter (R-PA.), head of the Senate Judiciary Committee sent Mr. Alito a letter outlining questions which the nominee might be asked during the confirmation process. Part of the communique focused on decisions made by the Supreme Court under the leadership of then-Chief Justice Warren related to a wide range of law, from the rights of criminal defendants to racial discrimination. Specter also mentioned several First Amendment cases:

* EMPLOYMENT DIVISION v. SMITH - "The court rejected a claim that the First Amendment required an exception from drug laws to allow practitioners in a Native American Church to use peyote during religious ceremonies."

* CHURCH OF THE LUKUMI BABALU AYE INC. v. HIALEAH -- "The court agreed that a law outlawing animal sacrifice for religious reasons violated the Free Exercise Clause."

* FRATERNAL ORDER OF POLICE v. NEWARK, a case heard by Judge Alito while on the Circuit Court. "You held that a police department violated the First Amendment's Free Exercise Clause by refusing to allow Sunni Muslim officers to wear beards as required by their religion, while at the same time allowing other officers, who had skin conditions that prevented them from shaving, to do so. You rejected the department's explanation that allowing officers to wear beards would undermine morale and spirit de corps..."

* ABRAMSON v. WILLIAM PATTERSON COLLEGE -- "You ruled in favor of an Orthodox Jewish Professor who lost her job at a state college after complaining about religious discrimination against her.

   "Specifically, she claimed that some supervisors attempted not to retain her and to deny her tenure because they found her observations of the Sabbath inconvenient. You rejected the college's argument that the harassment identified by the professor was not sufficiently severe to trigger the protection of federal laws. You wrote, 'While case law provides only limited protection for employees whose religious obligations conflict with neutral job requirements ... (the law) does not permit an employer to manipulate job for the purposes of putting an employee to the 'cruel choice' between her religion and employment.'"

* BLACKHAWK v. PENNSYLVANIA. "You considered the case of a Native American who objected to a Pennsylvania law requiring him to pay a fee and obtain a license to keep black bears, which have religious significance to Lakota Indians..."

   Sen. Specter closed by posing three questions for Judge Alito:

"(1) What is your understanding of the scope of the Free Exercise Clause?

(2) Do you believe the Court should approach free exercise claims made by adherents of small minority faiths differently than it approaches claims made by adherents of more broadly subscribed to faiths?

(3) The above quoted language from your opinion in FRATERNAL ORDER OF POLICE seems to suggest that, when deciding if a rule violates the Free Exercise Clause, a court should consider the subjective intent of the government agents who adopted the rule. Is that, in fact, your view? If so, how should a court identify this intent, and how much weight should a government actor's subjective intent be given? If there were evidence of discriminatory intent in SMITH, do you believe that the case should have been decided differently?"

   Whether Sen. Specter will follow through with his intent to grill Judge Alito on these legal principles and nuances remains to be seen. The upcoming hearings, though, promise to be acrimonious, and the outcome could determine how the Supreme Court of the United States will defend the separation of church and state in the future -- or if, indeed, it will even bother to do so, and instead rush toward even more "accommodation" and support of religion.

[text only]