The Sum of Alito Fears

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The Sum of Alito Fears

Supreme Court nominee Samuel Alito has enviros worried

By Amanda Griscom Little

01 Nov 2005

 

Samuel Alito, to the right of President Bush (ahem).

Photo: Paul Morse/The White House.Enviro advocates in D.C. have spent the last

24 hours digging through Samuel Alito's extensive paper trail for clues as to

how he might vote on environmental cases were he confirmed as a U.S. Supreme

Court justice.

 

A staunchly conservative judge who's served on the Philadelphia-based 3rd U.S.

Circuit Court of Appeals for 15 years, Alito was nominated by President Bush

yesterday to fill the slot being vacated by Sandra Day O'Connor. He's already a

hit with Republican senators as well as Bush's right-wing base, which squelched

the candidacy of Harriet Miers.

 

Environmentalists, meanwhile, are joining many progressives and Democrats in

crying foul over the nomination.

 

Sen. Charles Schumer (D-N.Y.), a member of the Senate Judiciary Committee,

stepped right up yesterday to criticize Alito as a " controversial nominee who

would make the court less diverse and far more conservative. " He's been dubbed

" Scalito " for having a judicial philosophy closely akin to that of Supreme Court

Justice Antonin Scalia, who shares with the nominee a Roman Catholic,

Italian-American background.

 

That Scalia comparison alone is enough to raise the hackles of enviros, many of

whom see Scalia as a right-wing ideologue more staunchly opposed to

environmental regulation -- and federal-level authority in general -- than any

other justice on the Supreme Court. And at 55 years of age, some 14 years

younger than Scalia, Alito would be in a position to influence environmental

jurisprudence for decades to come.

 

Bush, trying desperately to bounce back after a week of crushing blows to his

presidency, gushed over his nominee, whom he described as having " extraordinary

breadth of experience ... more prior judicial experience than any Supreme Court

nominee in more than 70 years. " The prez even tried to frame Alito as a

pro-environment pick who " moved aggressively against white-collar and

environmental crimes, and drug trafficking and organized crime and violation of

civil rights " as a U.S. attorney for New Jersey in the late '80s.

 

In The Same Vein

Toadus Operandi

John G. Roberts' enviro record not so green, but also not provoking a lot of

protestWhen examining the whole of Alito's record, however, environmentalists

found little that was encouraging. " Here's our initial assessment of his record:

some good, but more bad and ugly, " Glenn Sugameli, Earthjustice senior

legislative counsel, told Muckraker. " We're extremely concerned that Alito has

repeatedly sought to restrict Congress' authority to allow Americans to protect

their rights in court, and to enact laws that protect our health and

environment. His record in these cases is more hostile to congressional

authority than the current Supreme Court majority. "

 

Sugameli cites the example of Public Interest Research Group v. Magnesium

Elektron, a 1997 case in which Alito cast the deciding vote in a 2-1 ruling that

not only blocked certain rights of citizens to sue polluters under the Clean

Water Act, but threw out a $2.6 million fine against Magnesium Elektron for

violating the act. The decision was effectively reversed two and a half years

later by a Supreme Court ruling in which Scalia was one of two dissenting votes.

 

Alito's extensive track record on the court isn't entirely devoid of

pro-environment decisions. Take, for instance, the 1995 ruling on Pennsylvania

Coal Association v. Bruce Babbitt, in which Alito rejected an industry challenge

to the toughening of an environmental law on coal mining. Or the 1997 ruling on

Southwestern Pennsylvania Growth Alliance v. Carol Browner, in which he joined a

consensus in denying industry's efforts to skirt pollution rules under the Clean

Air Act.

 

Critics, though, say such instances are rare. Alito appears to have favored

environmental protections " mainly in the face of unanimous agreement and

overwhelming evidence against polluters, " said Doug Kendall, executive director

of the Community Rights Counsel, a D.C.-based public-interest law firm that

defends environmental laws against constitutional challenges.

 

 

Alito Rain Must Fall

 

What concerns enviros most are not the decisions Alito has made on environmental

matters directly, but those revealing a broader judicial philosophy that could

be invoked in future environmental lawsuits. " What's most important is what a

justice believes on constitutional grounds, " said Sugameli.

 

Take, for instance, Chittister v. Department of Community and Economic

Development, in which Alito argued that the 11th Amendment prohibits state

employees from suing a state government in federal court for damages under the

Family and Medical Leave Act. (The Supreme Court later ruled that employees

could sue under a related provision of the act.) " It's more evidence that Alito

may not believe the Constitution adequately empowers Congress to allow average

Americans to go to court, protect their rights, and ensure that environmental

and other laws are enforced, " said Sugameli.

 

Spend Your $.02

Discuss this story in our blog, Gristmill.The most troubling skeleton in Alito's

judicial closet, according to Sierra Club senior attorney David Bookbinder, is

the dissent he wrote in U.S. v. Rybar in 1996. Alito advocated striking down a

federal law banning possession of machine guns on the grounds that, in some

instances, it exceeds congressional power under the Constitution's Commerce

Clause. He argued that, as in-state machine-gun possession is not interstate

economic activity, such authority should be conferred to state governments

alone. This kind of reasoning strikes fear in the hearts of enviros, as the

Commerce Clause is the basis for nearly every major federal environmental law in

the U.S.

 

" If he is willing to find that Congress doesn't have that sort of authority over

possession of machine guns, it makes you very concerned he will apply the same

logic to Congress's authority over interstate pollutants, " said Bookbinder.

 

This is particularly concerning to enviros given that three weeks ago, the

Supreme Court decided to review Rapanos v. United States and Carabell v. Army

Corps of Engineers, two landmark cases that challenge the reach of the Clean

Water Act and call into question state-level versus federal authority to protect

the environment. " The stakes are enormous, " said Kendall. " If the federal

government loses these cases, millions of acres of waters and wetlands could be

left unprotected. And an adverse ruling would also call into question a much

broader array of environmental safeguards. "

 

It brings into sharp relief the potentially immediate impact of Alito's

nomination, Kendall added: These cases are scheduled to be heard in the spring

of 2006, so if confirmed, Alito would be in a position to cast a deciding vote.

 

External control are you gonna let them get you?

Do you wanna be a prisoner in the boundaries they set you?