The Alito Nomination: A Pivotal Battle...And What's Needed to Defeat the Fascist Agenda

Revolution #027, December 19, 2005, posted at

"We are ready to rumble!" said Tony Perkins of the Family Research Council. "Why? Because this is a moment in history that has been decades in the making." The forces of reactionary Christian theocracy smell blood in upcoming confirmation hearings over the nomination of Samuel Alito to the U.S. Supreme Court. The itch for a brawl by the Christian fascists reflects the enormous stakes of the Alito nomination.

In that light, it's necessary to soberly assess what the Alito nomination represents, what an Alito on the Supreme Court would mean, and what is required to confront and roll back the whole package that the Alito nomination is a part of.

A Battering Ram for Christian Fundamentalist Theocracy

Alito on the Supreme Court would be a battering ram in bringing about a pivotal shift in the legal structure and norms that have been in place in this country for decades. While these structures and norms have always served to defend and extend the exploitation and oppression of capitalism, what is being put in place on a whole host of questions--presidential power, the rights of defendants in the legal system, prohibitions of torture, equal protection under the law for women and minorities, international law, and the separation of church and state--will represent a qualitative leap for the worse for the people and their ability to resist, to fight for a better world, and to make revolution.

To take one concentrated example: Alito has stated that his legal opinion (not his personal opinion), leads to the conclusion that there is no legal justification for abortion. A recently uncovered memo discloses Alito identifying his mission as "bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects."

But Alito’s legal philosophy goes beyond outlawing abortion. Alito argued in a 1986 case that "nonresident immigrants of other countries have 'no due process rights' under the Constitution." In a 1984 case, Alito argued that it was perfectly acceptable for Tennessee cops to shoot and kill a 15-year-old boy who was fleeing a home where they were investigating a burglary, even though the police stated that they could tell that the kid was unarmed. Alito wrote that when a suspect flees, that person gives police the power to shoot to kill at their discretion, whether or not the suspect actually poses a threat!

The Knight-Ridder news service wrote that "Although Alito's opinions are rarely written with obvious ideology, he's seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big businesses." And, in a ruling that is being publicized by forces organizing against his nomination, Alito argued that it was acceptable for the cops to strip-search a 10-year-old girl who was riding in a car with her mother when the mother was accused of drug possession. Even though the search warrant said nothing about the girl, Alito ruled that it should be interpreted "broadly" enough to allow searching her. All this paints a sinister picture of someone who will be a reactionary, pivotal force on the Supreme Court.

It gets worse.

Reactionary Christian forces who openly call the constitutional separation of church and state a "myth" have launched heavily funded campaigns to mobilize their armies to demand the confirmation of Alito precisely on the basis that he is going to be a battering ram against the separation of church and state.1

Christian fascists are cranking up the volume on their "persecuted Christians" demogoguery, in close synchronization with the Alito nomination. Their web sites, speaking to their own forces, openly connect the campaigns to boycott retailers who have "happy holidays" campaigns (instead of explicitly religious celebrations of Christmas) with mobilizing support for Alito.

Here, one has to stop to think about and confront what kind of hell on earth we'd be living in if the Christian fascists had their way. It's important to remind ourselves that the Bible--which these Christian theocrats demand be taken literally as the basis of the law of U.S. society--mandates the death penalty for things like homosexuality, rebellious children, and working on the sabbath!

Channeling Discontent

Democratic Senator Joe Biden made a widely circulated statement that there could possibly be a filibuster over Alito. Speaking of an application Alito wrote for a job in the Reagan administration, Biden said, "The part that jeopardizes it [Alito's nomination] more is his quotes in there saying that he had strong disagreement with the Warren Court particularly on reapportionment--one man, one vote." Biden went on, "The fact that he questioned abortion and the idea of quotas is one thing. The fact that he questioned the idea of the legitimacy of the reapportionment decisions of the Warren Court is even something well beyond that."

By raising the prospect of filibuster, Biden is maneuvering to "keep hope alive" that the Democrats can be relied on to put up a fight over Alito. And, by narrowing the terms to the reapportionment issue, Biden is channeling the opposition into terms that concede massive ground. It's not that the reapportionment issue is insignificant. Overturning existing rules on how congressional districts are drawn contributes both to disenfranchising Black voters and to rigging up election districts that institutionalize a one-Party (Republican, obviously) state.

But look again at how Biden is framing the fight. When he says, "the fact that [Alito] questioned abortion and the idea of quotas [more fundamentally court rulings that challenged overt, legal discrimination] is one thing..." he is saying that the Democrats are going to rule out throwing down over the right to abortion and opposing racial discrimination--questions at the heart of what kind of society this will be. And the theocracy issue is not even on Biden's list!

At the same time, while the main thing going on here is the attempt of Biden and other Democrats to channel, confine, and curtail the resistance against Alito, there is also an aspect around reapportionment--where the Democrats see the Republicans moving further in an attempt to make the U.S. a one-party state--that could lead to clashes around the Alito hearings and nomination which could assume significance in the context of a larger resistance that did NOT confine itself to the terms and forms of struggle being pushed by the mainstream Democratic leadership and its allies.

The Battle Against Alito and the Need to Drive out the Bush Regime

To sum up: the Christian fascist forces have identified the Alito nomination as critical and pivotal to their agenda. They see Alito on the Supreme Court as a big part of cementing a new legal framework that represents an extremely serious attack on the people. In other words, this whole thing is bigger than Alito, and these fascists are fighting it with that perspective.

On the "other side of the aisle," the Democrats are conceding massive ground, and are not even committed to filibuster. And even there, Republicans, including Senate leader Bill Frist, have threatened to not allow a filibuster. The only condition under which the Alito nomination can be defeated is the emergence of a large, politically aggressive movement, heading towards the State of the Union Address, that situates the Alito nomination in the larger context and that breaks out of the confines of lobbying and pressure groups.

The only chance to defeat this deadly fascist agenda, and within that the Alito nomination that right now marks a crucial concentration of it, lies in throwing our all into building and struggling for a massive turnout at State of the Union to drive out the Bush Regime and its agenda, as called for by the World Can’t Wait initiative. []

As we have said time and again, the dynamic of allowing the terms to be set and the sides to be drawn by the top Democratic leaders is a deadly one that dooms the people to passivity and impotence, and can only serve to derail their struggle. We need instead a dynamic in which the terms are set by the struggle coming "from below," and every other major political force in society has to define itself in relation to that. There are millions and millions of people in this country who urgently want to defeat this nomination and, more than that, want to stop the whole course of things of which it is part. They must hear from those who can expose the full ugly dimensions of this program and offer a way to fight it that can actually bring into being that different dynamic, and set a whole different course that corresponds to the real interests and urgently felt aspirations of those millions.

Enforcing Christmas as a Weapon for Theocracy

A radio commercial running in Colorado, Wisconsin, and West Virginia (states whose senators are considered pivotal votes on Alito) is calling out the troops with this message: "It is the time of year when bedtime stories and television specials often recall the plucky reindeer and the little girl of Whoville who managed to save Christmas. This year, some conservative groups are hoping to add a new name to that pantheon of heroes: Judge Samuel A. Alito Jr., the Supreme Court nominee.... Liberal groups like People for the American Way and the ACLU have opposed public Christmas and Hanukkah displays and even fought to keep Christmas carols out of school... Some courts and judges have supported this radical agenda, but not Judge Sam Alito."

The ad continues, "Throughout his career, Judge Alito has consistently upheld the Constitution's protection of free religious expression."

"This is going to be the dominant theme on the Alito nomination until the end of the year--the convergence of a Supreme Court nomination, the Christmas season, and a judge who has a well-staked-out position on support for religious expression," said Jay Sekulow. Who is Sekulow? In Contempt: How the Right is Wronging American Justice, Court TV reporter and former Republican Judge Catherine Crier quotes Sekulow saying that "Our public schools began as ministries of the Church … Now it is time to return them to the Lord." In that context, the agenda of the campaign to formally institute Christmas celebrations in public schools should be understood as part of the method Sekulow outlines (quoted in Contempt): "I've got an agenda if you will. I’m utilizing the courts to achieve that goal. You don't go from A to Z. You go from A to C, D to M, and eventually to Z."

And it is critical to grasp that Sekulow is not just some isolated fascist theocrat. When not running his massively funded networks of Christian fundamentalists, Sekulow's web site describes him as "an adviser tapped by the White House to coordinate support for its nominees." Crier's book reveals that every week, Sekulow and other leading Christian theocrats hold a conference call to check on the progress of their agenda; with prominent members of the Bush administration (such as Karl Rove) often on the line.


1. Alito has not only ruled in favor of allowing governments to set up Nativity scenes, he ruled against a school district that wanted to prevent an evangelical group from sending fliers home to elementary school children. While Alito's arguments have also expressed the position that other religious expression (by Jews and Muslims) can be officially sponsored by government, these rulings can be understood as an expression of Alito's much touted skill at packaging a reactionary agenda in ways and terms that provide a "carefully argued" and "legally rigorous" approach.

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