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Lambda Legal Raises Potential 'Red Flags' on Nomination of Judge Samuel Alito; Vows to Seek Answers to Tough Questions During Confirmation Hearing

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"Our guiding principle as we examine court nominees is that our clients, and all civil rights plaintiffs, must have a level playing field when they appear before the Court."
October 31, 2005

(New York, October 31, 2005) — Lambda Legal’s Legal Director, Jon Davidson, made the following statement concerning the nomination of Judge Samuel Alito to replace Supreme Court Justice Sandra Day O’Connor.

“If confirmed Judge Alito is likely to be the decisive vote on many critical issues important to all Americans — including the most basic rights of lesbian, gay, bisexual, transgender and HIV-affected people.

“Lambda Legal firmly believes that a commitment to equality and fairness for all Americans is a core qualification for a lifetime appointment to the Supreme Court. Legal intellect, experience and independence are necessary, but not sufficient.

“One of the factors that led to the failed nomination of Harriet Miers was the perception by the right-wing that she was not the staunch conservative ideologue they have been waiting for.

“Unlike the right-wing, we aren’t looking for a guarantee of success each time we come before the high court. Our guiding principle as we examine nominees to the Supreme Court is that our clients, and all civil rights plaintiffs, must have a level playing field when they appear before the Court. The Constitution requires this, and it is every justice’s responsibility to make this promise a reality.

“A level playing field requires a clear commitment to equality and fairness for all Americans, including lesbian, gay, bisexual and transgender people and those affected by HIV. Does Judge Alito’s judicial philosophy reflect that commitment? That is the central question for us.

“We pledge a careful and thorough review of Judge Alito, and we look forward to the upcoming confirmation hearings as an opportunity to get answers to our questions. Already, however, we have reasons for serious concern. There are a number of issues that are important in determining whether a nominee will respect the rights of all Americans. Judge Alito’s track record on reproductive freedom, enforcement of civil rights and federalism (respect for Congress’s power to enact important statutes like civil rights laws) raises potential ‘red flags’ for Lambda Legal and merits particular scrutiny.

“In 2001, Judge Alito authored a decision in Saxe v. State that declared unconstitutional a public school district policy that prohibited harassment against students because of their sexual orientation or other characteristics. The policy focused only on harassment that had the purpose or effect of interfering with a student’s educational performance or creating and intimidating, hostile or offensive environment. Nonetheless, Alito reasoned that the policy was unconstitutional because it could cover what he called ‘simple acts of teasing and name-calling.’ Many LGBT students report that they are subjected to verbal harassment; LGBT students are at heightened risk for dropping out of school because of harassment and discrimination.

“In the weeks ahead, the U.S. Senate has the responsibility to closely scrutinize this nomination and to use the confirmation hearings to ask the tough questions of this nominee — and get answers. The burden is on Judge Alito to demonstrate that he is qualified to serve on the U.S. Supreme Court. Lambda Legal looks forward to playing an important role in that process, as we did in the vetting of John Roberts’s nomination.”

During the Roberts confirmation process, Lambda Legal provided the Senate Judiciary Committee with 30 substantive questions that were designed to determine whether Judge Roberts was fully qualified to serve on the Supreme Court. The substance of many of those questions was asked during the confirmation process, although few were answered in a meaningful way. As a result, Lambda Legal opposed the Roberts nomination.

Last spring, Lambda Legal launched a wide-ranging national campaign called “Courting Justice: Stand Up for Fair Courts — Protect Our Rights.” The campaign mobilizes LGBT people, those affected by HIV and their allies to advocate for unbiased judicial nominees, defends fair-minded judges from political attacks and supports the legitimate role of courts in addressing civil rights claims.

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Lisa Hardaway Cell: 402-369-2104

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