Monday, October 31, 2005

Sam the Sham

Last week, the right forced President Bush to withdraw Harriett Miers as his nominee to the Supreme Court.

And, as I predicted that day, he has nominated a radical conservative to the court. Samuel Alito, who once clerked for Antonin Scalia and shares the same general philosophy as his mentor, has been named as the replacement for Justice O'Connor.

This is the nomination that Democrats should filibuster. They did not filibuster John Roberts. They had no intention of filibustering Harriet Miers.

However, Alito, who has frequently been the lone dissenter on the circuit court he is on in Pennsylvania, is not John Roberts, who can be expected to listen to the arguments presented or Harriet Miers. He is instead an ideologue. A justice who, despite his low key approach and quiet demeanor, is likely to approach cases with a predetermined view, and unlikely to change it. As for what a few of those views are, just take a look at the record.


In Planned Parenthood v. Casey (1991), Alito was the only dissenter in a case that, among other things, threw out a Pennsylvania law that required women seeking abortions to notify their husbands.

We have also seen that he has ruled consistently in directions that are way out of touch with the American mainstream.

In the 1997 case, Bray vs. Marriott Hotel for example, we find that

Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by “immuniz[ing] an employer from the reach of Title VII if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias.” [Bray v. Marriott Hotels, 1997]

So according to the majority on the court, Alito apparently explained to them that even if open racism were used to help select a candidate, it was still the perogative of the employer to do so. Hmmm. With Samuel Alito on the Supreme Court, it will be possible for segregationists to employ CONSCIOUS racial bias in hiring. Any decision like that will be as bad as the Dred Scott decision, and turn the clock back to the 1950's.

11 comments:

Mark said...

I read through the CNN article that you reference. CNN doesn't say that he is a radical or a "sham". The article makes him sound quite reasonable and that he would not radically overturn judicial precedent.

As far as a wife notifying the husband of an abortion, I would want to know. Wouldn't you. Does the "right" to participate in a decision to end a pregnancy only belong to females? If you were born male, you dont get a say in those kind of decisions.

Sounds discriminatory to me.

dorsano said...

Does the "right" to participate in a decision to end a pregnancy only belong to females?

Maybe - if the "husband" has abused his wife.

My wife proves every day that she knows just as much if not more about how to care for our family and herself as I do.

I have no problem with any decision she chooses to make.

Eli Blake said...

Mark,

(True, I couldn't resist the title. Remember Sam the Sham and the Pharoahs (Wooly Bully?))

I find the whole issue in the Bray case to be discriminatory. If I only hire, say, Polish people because I only want to hire Polish people, but I am convinced that the Polish person I just hired instead of you is the best person for the job, but you know you never had a chance because you weren't Polish, wouldn't that seem to be a problem for you?

As far as a married woman notifying her husband of an abortion, there are some issues you are missing. In any good marriage, there would be no problem with this because the wife would tell her husband if she was thinking about it, and probably involve him in the decision. The problem here is that clearly we are talking about a situation where something is not right. It may be that she has had an affair or that she is thinking of leaving the marriage (not that I would hope or expect to be in that kind of a situation with my wife, but they do happen). It could also be something worse-- namely if he finds out (whatever the reason) he will beat the crap out of her-- domestic violence is disproportionate in marriages where there ISN'T communication naturally between the spouses).

Mark said...

Not knowing much about the individual cases it would be hard to tell. But, I am in favor of husbands rights to know about abortions and pregancies. I am against those same rights for men who are not married to the woman. As far as I am concerned a father not married to the woman he impregnates gives up his right to fathership rights, while still morally bound to provide financially for the child.

My point was that this position on this case does not necessarily mean that this particular judge is way out beyond the main stream of Americans. Husband's rights are just as important as Wife's rights.

You cannot call a man a radical based on a few short snippets from CNN or "thinkprogress.com". The individual cases may show that the judge simply had more judicial restraint that other judges, or for that matter more compassion.

As far as the Bray case. I am not familiar with that one either. But, at first look at the one-liner from "thinkprogress.com" you would sure think that Alito is a biggot. However, I wouldn't call anyone a biggot unless I knew the person and knew for sure his mindset. I sincerely, doubt that a Judge with his intelligence is a raving biggot. Don't you?

When I interview for employees I tell them that the only thing that I will discriminate by is that I don't hire smokers. Am I breaking the law? No. Business owners should retain some rights in hiring decisions.

Mark said...

Eli:
I am opposed to any sort of discrimination based on race, religion, sex (male or female). In most cases also; age, appearance (obesity), and handicap.

I am for discrimination based on ability, aptitude, personal hygiene, and in some cases, attractiveness.

Hooters has the right to hire only attractive young women. Don't they?

By the way, a liberal wouldn't likely admit this possible, but in the 70's when the ERA was looking like it would be ratified; it is true that some Arizona reservation schools removed the "boy" and "girl" signs from their bathrooms. Now where is the common sense in that?

My mother, a substitute teacher at one of those schools at the time was apalled that as she went to the restroom the girls were trying to get the boys out of the bathroom. Which some of the boys were simply trying to use the bathroom themselves. Equal rights gone wacko.

NYC said...

Uh oh, sounds like the issue of abortion discussion is getting started here early. Good mornin' everybody!

On the issue of a woman having to notify the husband, of course I would want to know, and of course in any good marriage there should be communication about such things.

However, it's not a perfect world, and a ruling mandating "notification" of a husband, would most likely require that husband's signature stating that he has been notified, creating a "permission slip" kind of situation for the woman.

Imagine this sort of scenario:
the case of a woman who once again finds herself pregnant (by her husband), they have several children, her husband is very religious and does not believe in married couples using birth control of any kind, she carried her other children to full term, but has been told by doctors that she shouldn't have more children because it could be dangerous for her. She is happy about the idea of a baby, but worries about the risk, she considers the option of abortion, but knows her husband is absolutely against such a thing. Her life could be in jeopardy if she were to carry to full term, but she has little hope of getting her husband to agree. Her right to choose is gone, even though her choice could save her life. She decides to discuss the idea with her husband, he says "no" to the abortion idea, and refuses to sign any sort of form or make any sort of statement indicating he has been "notified". Nine months later the woman experiences complications during labor, and quietly passes away, the story doesn't even make the evening news.

The examples about abortion issues don't always have to be extreme, such as extramarital affairs, or domestic abuse, sometimes the issues come from people simply attempting to live their lives based on their own personal beliefs and values. The husband's refusal to sign doesn't even need to be out of spite, it could simply be out of what he believed to be right, or out of love for the woman and the idea of an unborn child.

Imagine needing that level of permission from someone else to do something that might save your life, it might be something you don't really want to do, but with the ability to choose removed, your life is inevitably put in the hands of someone else, and dependant upon their values or even mercy.

Before anyone assumes anything, I'm not necessarily pro-abortion, I just believe that women should have the personal freedom of choice in a matter of a very personal nature.

Eli Blake said...

mark:

I don't believe he is personally a bigot, but I believe that some of his decisions have been in favor of those who are. And it's the decisions we are looking at here, not the personal views, isn't it (at least that's what I thought when conservatives spoke out against asking what the role of anyone's religion would be in their decision making process (except, of course, for John Kerry)).

As far as the items you consider OK to discriminate against, I would modify it by saying it should matter only if it directly affects the job the person is doing. For example, if Hooters preferentially hired an attractive young woman over a more qualified older one to be their accountant or to work in the bar mixing the drinks, then I would say that the older woman would have a case.

And in fact, Delta Airlines lost a suit filed by a stewardess several years ago who was fired after weighing in about ten pounds over their limit. The court indicated that Delta failed to show that her ten pounds over would either compromise her ability to do her job or the safety of herself, the passengers and the crew.

As an employer, you certainly have the right to insist on no smoking at your business. However, there are a number of suits filed right now by smokers making their way through the courts claiming that they were discriminated against because of their status. We will see how that works out.

As for restrooms, this was clearly an overreaction because the ERA said that there could be no discrimination on the basis of sex. And for that matter, it is becoming moot anyway-- many businesses are going to unisex bathrooms with locking doors, largely prompted by women having to wait longer in line than men. One example that I believe you are familiar with is Bookman's in Flagstaff-- they have two restrooms in separate adjacent rooms. It would have been very simple to label one 'men' and one 'women.' Instead, they labelled neither and installed a lock on each door. So, there is one line for people waiting (when there are enough to form a line) and either gender can use either restroom. I also noticed a similar set up in one of the buildings I was in at NAU. I suspect this will become the norm in the future. I also suspect it will cut down on the graffitti and sanitation problems that you find now in some men's rooms because women are more likely to complain about a dirty or offensive restroom and insist it be clean.

Eli Blake said...

gc:

I would love it if there weren't any abortions either. I believe that the way to get there is by continued education, birth control and family planning. My problem is when people say they are against something and immediately want to ban it. As prohibition showed, banning something doesn't prevent it, it only drives it underground and creates a new class of criminals to cater to those who are willing to violate the ban. The place to be against abortion is at home. I had a fifteen year old daughter who became pregnant two years ago. I was opposed to her having an abortion (and thankfully she did not) but that isn't to say I believe that if she had decided to, I should have had any right to prevent it.

I blogged on abortion in July. One of the comments was very good. It was from a guy who pointed out that he is against smoking (and I agree, that smoking is a societal evil which kills millions, costs billions of dollars, and creates untold misery). But that isn't the same thing as suggesting that we should ban cigarettes. There are better ways to fight tobacco (and give the Clinton administration and Henry Waxman credit for pushing hard for tobacco education in the schools) than to simply say it should be illegal. And so too, with abortion.

dorsano said...

From a medical standpoint, pregnancy is considered to begin when the fertilized egg attaches to the uterus. Abortion is the termination of a pregnancy.

Levonorgestrel works by preventing ovulation and implantation and in medical terms is considered a contraceptive.

Will a woman need permission from her husband to take the "morning after pill"?

dorsano said...

67% of abortions are from women who have never been married.

If a married woman seeks an abortion and doesn't tell her husband she likely has a reason and if we, via the State, decide to intrude on that decision,

I can only imagine that it would do more harm than good.

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