Common Dreams / Published on Thursday, January 19, 2006 by the Providence JournalGlenn Sugameli
The Hearings by the Senate Judiciary Committee on President Bush's nomination of Judge Samuel Alito for a lifetime appointment to the U.S. Supreme Court are over.
In light of what has been learned in the hearings, I trust that the American public and Rhode Island Senators Lincoln Chafee and Jack Reed now realize that Judge Alito is an activist judge, who historically favors industrial polluters at the expense of people seeking to uphold and enforce federal environmental and public-health safeguards. Fortunately, Senator Chafee recognizes this threat. The Providence Journal reported on Jan. 9 ("Undecided on vote, Chafee has questions") that "Chafee specifically fears that Alito would vote to trim environmental-protection law."
As a result of Judge Alito's record, Earthjustice and more than a dozen other national and state environmental groups oppose his nomination. This is the first time environmental groups have opposed a Supreme Court nominee since Robert Bork, in 1987.
Judges must fairly and impartially interpret and enforce the Constitution and laws -- not make law. This is most important on the Supreme Court, on which justices serve for a lifetime.
As a central criterion for President Bush's nomination of Harriet Miers to replace retiring Justice Sandra Day O'Connor, he said, "[J]udges should strictly interpret the Constitution and laws, not legislate from the bench." Judge Alito has a long history of violating this basic rule. Time and again, he has put his own views above the laws enacted by Congress and signed by the president. If the Senate confirms his nomination for the Supreme Court, Judge Alito's record indicates that he will spend the rest of his life legislating from the bench.
A Washington Post comprehensive analysis of Judge Alito's Appeals Court opinions concluded that he has a history of siding with industry in opposing government safeguards designed to protect the public. The Post's analysis said, "The only kind of case involving the government in which Alito ruled against its interest most of the time was when companies challenged federal regulations."
Judge Alito provided the deciding vote in favor of polluters to overturn protective actions by the U.S. Environmental Protection Agency. For example, in W.R. Grace v. EPA, Judge Alito provided the decisive vote to overturn the EPA's emergency-cleanup order under the Safe Drinking Water Act. The company had sued to block a requirement to clean up its pollution, which threatened the drinking water of 180,000 people in Lansing, Mich.
In 1997, Judge Alito joined a 2-to-1 majority opinion in PIRG [Public Interest Research Group] of New Jersey Inc. v. Magnesium Elektron Inc. [MEI], reversing the trial court's $2.6 million fine on MEI for its 150 Clean Water Act discharge violations at the Wickecheoke Creek, which flows into the Delaware River and Raritan Canal. Despite recognizing that PIRG's members used the polluted creek for fishing and other recreation, Judge Alito ruled that PIRG did not have "constitutional standing" to seek enforcement of the law in court. In Friends of the Earth v. Laidlaw, the Supreme Court rejected his approach.
Judge Alito has an extremely narrow view of Congress's constitutional authority to regulate interstate commerce, which is the basis for most federal environmental and public-health laws. His record indicates that he would use his position on the high court to undermine enforcement of laws that depend on the mainstream interpretation of the Constitution's Commerce Clause.
For example, Judge Alito dissented in U.S. v. Rybar, a case in which a federally licensed firearms dealer sold two illegal machine guns at a gun show. Judge Alito's dissenting opinion concluded that a law signed by President Reagan banning possession of machine guns was unconstitutional under the Commerce Clause. This contradicted many decisions by circuit courts of appeal. Even right-wing Sen. Tom Coburn (R.-Okla.) concluded that Judge Alito was "wrong" and was "legislating" from the bench.
Judge Alito's record suggests that he would support extreme Commerce Clause challenges to legal safeguards that Americans have depended on for decades. For example, the Supreme Court will soon decide on two constitutional challenges that seek to invalidate protections for the vast majority of streams and wetlands protected by the Clean Water Act of 1972, including waters that feed Narragansett Bay.
America depends upon Supreme Court justices to uphold and enforce our nation's environmental and public-health safeguards -- not to legislate from the bench to rewrite them. Rhode Island's Senators Chafee and Reed should vote against confirming Judge Alito, because his record shows that he is a threat to our health, the water we drink, and the land we inhabit.
Glenn Sugameli is the senior judicial counsel of Earthjustice, a nonprofit law firm that works to protect the environment.
