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At Issue

From a Jewish perspective,
is Judge Samuel Alito Jr. a solid Supreme Court nominee?

Alito Protects Minority Rights

Washington/JTA

with criminal cases, Judge Alito rebuked
me for my attitude and made it known
that we were to carefully read all briefs
and the appellate record and conduct any
additional research needed to
ensure that all parties received
fair hearings before the court of
appeals. Like Judge Alito, we
were expected to keep an open
mind and not prejudge any
case.

t's axiomatic that Jews tend to view all
news through the lens of "but is it
good for the Jews?" Its
therefore no surprise that this
filter now is being brought to
bear on my former boss and
mentor, Judge Samuel Alito Jr.,
who has been nominated to the
U.S. Supreme Court.
Based on my experience
Religious Freedom
working closely with Judge
. Second, in areas of religious
Alito, I can answer unequivocal-
Jeffr ey N.
freedom, Judge Alito has a
ly that yes, Judge Alito will be
Wasse rstein
proven record of being sensitive
good for the Jews — and, by
Po int
to the needs of minority reli-
extension, for all Americans.
gions. He has considerably more sensitivi-
I'm a pro-choice, registered Democrat
ty to members of minority religions than
who supports progressive candidates. I'm
some of the conservative justices currently
also a graduate of the Jewish Theological
serving on the Supreme Court.
Seminary of America and an observant
The current Supreme Court standard
Jew who is active in my community.
for determining religious discrimination
Notwithstanding numerous areas of com-
cases under the First Amendment's "Free
monality I have with the liberal groups
Exercise" clause is Employment Division v.
opposing Judge Alito's nomination, I
Smith in which Justice Antonin Scalia
wholeheartedly disagree with their posi-
wrote that a law that does not target reli-
tion on the nomination.
gion doesn't violate the First Amendment.
First, while the Jewish community may
In other words, if the statute is not target-
be suspicious that certain statements
ing a religious practice, it's constitutional
made when Judge Alito worked in the
even if it has the effect of banning that
Reagan-era Justice Department show him
practice.
to be a dyed-in-the-wool conservative
One example of Judge Alito's greater
intent on enacting a conservative agenda, I
sensitivity to religious discrimination
believe such fears are misplaced.
cases is a case involving Muslim police
Regardless of Judge Alito's personal
officers in Newark, N.J. In that case, Judge
beliefs or positions that he advocated
Alito held that the city violated police
while a litigator with the Justice
officers' Free Exercise rights by requiring
Department, he takes great pains to set
them to shave their beards in violation of
aside his personal opinions when judging.
their Sunni Muslim religious beliefs.
To be frank, he did such a good job of set-
In another case, Judge Alito wrote an
ting aside his personal beliefs that I did
opinion
stating that a university could
not know what they were when I clerked
not
discriminate
against a Shabbat-
for him.
observant
professor,
since "criticism of an
In this era in which nearly everything is
employee's
effort
to
reconcile
his or her
subject to partisan politicization, it is hard
schedule
with
the
observance
of Jewish
to understand that someone can put aside
holidays
delivers
the
message
that the
one's personal views. Yet Judge Alito is so
religious
observer
is
not
welcome
at the
committed to the judicial process, includ-
place
of
employment."
ing the principle of respecting precedent
As someone who believes that the
that he succeeds in doing so.
Jewish
community is best served by
Contrary to attempts to paint Judge
judges
who
limit their roles to deciding
Alito as a conservative ideologue, I can
specific
cases
and not enacting their per-
attest to the fact that Judge Alito is an
sonal
agendas,
I'm convinced that Judge
open-minded judge who does not come to
Alito
is
by
far
the
best person for this
cases with preconceived notions. One
position.
Is
he
good
for the Jews?
time, while working on a criminal appeal,
Absolutely.
El
I made the mistake of commenting that
the case should be fairly easy to decide in
Jeffrey Wasserstein was a law clerk for Judge
favor of the government, in light of the
Alito from 1997-1998. He is a principal in the
extremely slipshod brief submitted by
law firm of Hyman, Phelps & McNamara, P.C.,
defense counsel.
in Washington, D.C.
Even though he was a former federal
prosecutor with considerable experience

I

Alito Would Erode Protection

Circuit when it decided that students
could not include a prayer in their gradua-
tion programs simply because they had
ut is it good for the Jews? That
voted to have one.
was the question many of our
He also argued that public-
grandparents voiced
school teachers could be forced
when they perused the morn-
to distribute materials of the
ing papers — a question we
Child Evangelism Project for
may have dismissed, even with
their weekly after-school meet-
affection, as a narrow or
ings. In contrast, the Supreme
parochial expression.
Court concluded that religious
Today, we know that what's
meetings may be held on school
"good for the Jews" extends
grounds
only "where no school
beyond ourselves: It encom-
officials
actively
participate."
passes a concern for the well
Phyllis S nyder
being of society as a whole and
Counte rpoint
Hostility To Choice
the fate of our constitutional
As
for
a
woman's
right to choose an abor-
freedoms.
tion, Alito's hostility to the right to choose
For the National Council of Jewish
Women, this has led us to take sides in the has been unwavering. While working in
the Solicitor General's office, Alito wrote a
national debate on the direction of our
17-page memo on using Thornburgh v.
courts, which are the guardians of our lib-
American College of Obstetricians and
erty and our well being as Jews and as
Americans. And it has led us to oppose the Gynecologists as an "opportunity to
nomination of Judge Samuel Alito Jr. to fill advance the goals of bringing about the
eventual overruling of Roe v. Wade and, in
the Supreme Court seat of retiring Justice
the meantime, of mitigating its effects." He
Sandra Day O'Connor.
later expressed pride in his role in that
When a Supreme Court nominee
decides that the First Amendment permits case.
In Planned Parenthood v. Casey, he
the majority religion to impose its beliefs
and symbols on the rest of us in the public wanted to uphold a requirement that a
woman notify her husband before obtain-
square, it's not good for the Jews.
When he reveals his lifelong ambition to ing an abortion, a proposition Justice
O'Connor and the majority rejected,
overturn the landmark 1973 case Roe v.
Wade, preventing a woman from following declaring: "A state may not give to a man
the kind of dominion over his wife that
her conscience and religious beliefs when
parents exercise over their children."
exercising her legal right to choose abor-
His strategy of pressing for more and
tion, it's not good for the Jews.
more restrictions on Roe v. Wade clearly
And when he consistently rules against
became the ongoing strategy of the anti-
victims of employment discrimination,
choice movement — a movement that
narrowing civil rights protections, that,
would restrict religious freedom by
too, isn't good for the Jews.
Judge Alito has a record of conservatism imposing one religion's view on all
women.
that is far to the right of our national con-
So, what is "good for the Jews?" It's a
sensus. He's the candidate President Bush
Supreme Court committed to upholding
promised us when he said in 2000 that he
the rights and liberties enumerated in the
would appoint justices like Clarence
Bill of Rights, to upholding the letter and
Thomas and Antonin Scalia.
spirit of pluralism and to upholding basic
. By his own account in 1985, Judge Alito
values of inclusion and fairness.
entered law school "motivated in large
The protections we seek as members of
part by disagreement with Warren Court
decisions, particularly in the area of crimi- a minority religious group cannot exist in
a vacuum, but only in the context of a
nal procedure, the Establishment clause,
larger society in which everyone's rights
and reapportionment."
and liberties are protected.
Further clarifying his views on the
For that reason, the National Council of
Supreme Court's past decisions regarding
Jewish Women urges all Jews and Jewish
religion, he told his supporter, Sen. John
organizations to join with us in the fight to
Cornyn, R-Texas, in November 2005, that
defeat Alito's nomination to a lifetime seat
these rulings "were incoherent in this area
on the highest court in the land. ❑
of the law in a way that really gives the
impression of hostility to religious speech
Phyllis Snyder is president of the National
and religious expression." Alito's judicial
Council of Jewish Women.
record supports this statement. He dis-
agreed with the majority of the Third

New York/JTA

B

January 12 * 2006

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