Based on Judge Alito's extensive public record before us as outlined in the background of this Resolution, the Commission on Social Action is recommending that the Biennial oppose Judge Alito's nomination to the Supreme Court of the United States. It does so concerned that on issues of core value to our Movement his assertively conservative approach to the law will shift the narrowly divided Supreme Court, and restrict constitutional and statutory protections regarding privacy, reproductive choice, women's rights, civil rights, and the separation of church and state. The CSA also has recommended that although Judge Alito's public record is extensive, consistent and unlikely to change in the hearings, the Union review this decision after the hearings in accordance with the procedure outlined in its 2002 Resolution on Judicial Nominations.
In 2002 the Union for Reform Judaism adopted a policy statement, "Resolution on Judicial, Executive Branch, and Independent Agency Nominations," to guide its deliberations when it considers the possibility of opposing a specific nominee for the federal judiciary. The resolution outlines the following considerations, one or more of which might provide grounds for opposition to a nominee:
A. The nominee lacks the competence, professional qualifications, or ethical standards to serve in the position to which he or she is nominated;
B. A nominee for a judicial position has demonstrated a pattern of disregard for generally accepted principles of jurisprudence or a nominee for an executive branch or independent agency appointment has a demonstrated record of opposition to the policies that he or she would be responsible to administer;
C. The nominee has a record of bigoted, racist or anti-Semitic activity;
D. The nominee has emerged as a major and influential ideologue on one or more issues of core concern to the Reform Movement and the appointment would likely contribute significantly to reshaping American jurisprudence or policy in a direction that would jeopardize those core values;
E. The nomination has engendered a national debate on one or more issues of core concern to the Reform Movement so that the outcome of the confirmation or nomination is likely to be perceived as a referendum on that issue and will have significant implications beyond the individual nomination; and
F. The nominee's confirmation would shift the ideological or policy balance of a particular court or independent agency on matters of core concern to the Reform Movement.
After carefully applying the considerations set forth in that statement, the Commission on Social Action is recommending opposition to the nomination of Judge Samuel Alito to serve as Associate Justice of the U.S. Supreme Court. While there is a general consensus that he is a person of the highest levels of intelligence, competence, integrity, and judicial temperament, and that considerations A-C do not apply; based on considerations D, E, and F the CSA recommends opposition for the following reasons (the quotes are from the 2002 URJ policy statement):
- Judge Alito's elevation to the Supreme Court "would threaten protection of the most fundamental rights which our Movement supports including, but not limited to, reproductive freedom, the separation between church and state, protection of civil rights and civil liberties, and protection of the environment;"
- On choice, women's rights, civil rights, and the scope of federal power particularly as it relates to civil rights and environmental protection, Judge Alito's nomination "has engendered a national debate on one or more issues of core concern to the Reform Movement so that the outcome of the nomination is likely to be perceived as a referendum on that issue and will have significant implications beyond the individual nomination;"
- Based on his opinions (often dissents on our core issues and values) in which he often differed from the views of Justice Sandra Day O'Connor (who was so often the moderate "swing vote" on a closely divided Supreme Court), Judge Alito's elevation "would shift the ideological balance of the Supreme Court on matters of core concern to the Reform Movement;" and
- Judge Alito's elevation to the Supreme Court "would likely contribute significantly to reshaping American jurisprudence in a direction that would jeopardize those core values."
Some hold that we should wait until after the Senate Judiciary Committee hearings, scheduled to begin on January 9, 2006, before finalizing our policy position. While this argument holds merit, the Union should voice its opposition now because:
- It is an extraordinary confluence of circumstance that brings the Reform Movement's highest decision making body together at a time that this decision can be made. Given this chance, it would be wrong to lose this opportunity to put such a decision before our largest, most diverse, most democratic body;
- Unlike the recent nominations of Judge Roberts and Ms. Miers, when our Movement chose to wait for the hearings before making a policy decision because their public records were so sparse, Judge Alito has a fifteen year record as a Circuit Court Judge revealing his judicial philosophy and substantive legal views, views that categorize him among the more conservative voices in American jurisprudence today;
- As his record is so expansive and consistent, it is far less likely that any new information will be presented during the hearings process that would alter our position. In the past, the Union has acted on several nominations where a nominee's record was well established and the timing of a board meeting preceded hearings-with the clear assumption that if the hearings substantively changed the view of the candidate the decision would be revisited. (In none of these cases did the hearings have that effect); and
- Much of the political dynamic that will shape the outcome of this nomination process will happen before the hearings in January 2006, and if our Movement believes it is helpful to act in order to maintain judicial protections of our basic rights, we can do so most effectively now.
There is recognition, however, that there should be an opportunity for Union leadership to review this decision after the hearings. The CSA has recommended such a review which would be implemented by a process the URJ Board established in 1974 and reaffirmed in its 2002 Resolution on Judicial, Executive Branch, and Independent Agency Nominations:
A. If time permits, recommendations to oppose a nominee will be taken to the UAHC [URJ] Board or its Executive Committee for decision.
B. If time does not permit, recommendations to oppose a nominee will be submitted to a review committee, which will include, in accordance with the UAHC [URJ] board resolution of June 1974, all members of the CSA Executive Committee who serve on the UAHC [URJ] Board and such other members as the Chair of the UAHC [URJ] may choose. The review committee is to make a recommendation to the Chair and President of the UAHC [URJ] who will decide the matter.
THEREFORE, the Union for Reform Judaism resolves to:
Oppose Judge Alito's nomination as Associate Justice of the Supreme Court of the United States now, based on his extensive record, but have the Union review that decision at the end of the hearings, with the understanding that if disclosures in the hearings do not reflect substantial changes, the Union will remain in opposition to his nomination.