SUPREME COURT
The Alito Myths

Senators in yesterday's Supreme Court confirmation hearings for Samuel Alito were spinning myths about the type of nominee they would like to have, failing to recognize the actual man standing before them. But don't let the conservative senators fool you -- their statements that Alito will practice judicial restraint, will not have an agenda, and will decide each case on an individual basis if appointed to the Supreme Court don't hold water. Throughout his career, Alito has pushed a right-wing agenda and "could prove [to be] more conservative than Antonin Scalia" if approved to the Supreme Court.

CLAIM -- ALITO HAS SHOWN JUDICIAL RESTRAINT: Sen. Mike DeWine (R-OH):"Judges are not members of Congress, they're not state legislators, governors, nor presidents. Their job is not to pass laws, implement regulations, nor to make policy. ... And, Judge, from what I've seen so far, you don't need much reminding on this score." Sen. Charles Grassley (R-IA): "I'm hopeful that his commitment to judicial restraint and to confining decisions to the law and the Constitution will shine through in this hearing."

FACT -- ALITO HAS A HISTORY OF LEGISLATING FROM THE BENCH: While on the federal bench, Alito has been more than willing to actively overstep judicial boundaries and overturn existing laws. Lawrence Lustberg, a criminal defense lawyer who has known Alito since 1981, described him as "an activist conservatist judge." In 1996, Alito was the sole dissenter in U.S. v. Rybar, arguing that Congress had no power under the Commerce Clause to ban fully automatic machine guns and demanding that "Congress be required to make findings showing a link between the regulation and its effect on interstate commerce, or that Congress or the president document such a link with empirical evidence." The majority sharply disagreed with Alito: "We know of no authority to support such a demand on Congress," which would require the federal government to "play Show and Tell with the federal courts." Even Sen. Tom Coburn (R-OK) had to admit that Alito "was legislating" in this case. Additionally, in the 2000 case Chittister v. Department of Community and Economic Development, Alito used his judicial position to "prevent the federal government from enforcing civil rights protections" by ruling that Congress overstepped its authority under the Fourteenth Amendment and therefore had no power to require state employers to comply with the Family Medical Leave Act.

CLAIM -- ALITO HAS PUT HIS PERSONAL VIEWS ASIDE: Sen. Jon Kyl (R-AZ): "Thus, even in your early 20s, it appears you were focused on the law as an independent pursuit, rather than using law to influence political ends."

FACT -- ALITO HAS PUSHED A CONSERVATIVE AGENDA: Alito's conservative politics -- going back to his days in the right-wing Concerned Alumni of Princeton group -- have appeared throughout his career. While applying for a job in the Reagan administration in 1985, Alito wrote that "the Constitution does not protect a right to an abortion" and while in the Solicitor General's office, he was able to "help advance legal positions in which [he] personally believe[s] very strongly." These assertions were Alito's personal views, not the views of his employer. While working in the Reagan administration, Alito strategically advised his employers how to push a right-wing agenda through the courts. In 1985, as an assistant solicitor general, Alito "urged the Justice Department to defend incremental state restrictions on abortion as part of a long-term strategy 'to advance … the eventual overruling of Roe v. Wade, and in the meantime, of mitigating its effects.'" Similarly, in 1984, Alito wrote that the U.S. attorney general "should be shielded from being sued for approving illegal, warrantless wiretaps on the grounds of national security." But, he knew that 1984 was not the right time to win his case and argued waiting for a "case involving a less controversial official and a less controversial era."

CLAIM -- ALITO HAS DECIDED EACH CASE ON AN INDIVIDUAL BASIS: Alito: "I had the good fortune to begin my legal career as a law clerk for a judge who really epitomized open-mindedness and fairness. ... He taught all of his law clerks that every case has to be decided on an individual basis."

FACT -- ALITO'S DECISIONS HAVE BEEN 'ALMOST UNIFORMLY CONSERVATIVE': Legal scholar Cass Sunstein noted that Alito's 41 dissents as an appeals court judge "are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues." Knight Ridder also found a clear pattern in a review of Alito's 311 published opinions on the 3rd Circuit Court of Appeals: He has "seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big businesses." Similarly, the Alito Project at the Yale Law School determined that while on the bench, Alito "has sought to move the law to achieve the broad philosophical purposes articulated in the memorandum he submitted in November 1985 as part of his application to become Deputy Assistant Attorney General in charge of the Office of Legal Counsel."

SAGO TRAGEDY
How Not to Prepare for a Mine Disaster

Funerals conclude today for the 12 West Virginia miners who died January 2 in an underground mine explosion; the sole survivor remains in a medically-induced coma. Work is now beginning to determine how and why this tragic event occurred. Federal investigators began their probe of the Sago mine over the weekend and Sen. Robert Byrd (D-WV) declared yesterday that officials from the Mine Safety and Health Administration (MSHA) will be called before a Senate Appropriations Committee this month. It is vital to understand what took place at Sago in order to prevent another similar tragedy, and to be prepared when one does occur. To do so is not to point fingers, as some critics disingenuously suggest. To be clear: the Bush administration's budget cuts for mine safety did not cause the West Virginia accident, nor was it President Bush's fault that an explosion occurred. But federal officials unquestionably share responsibility for the safety of our nation's mine workers, and the record shows they are shirking their commitment.

IGNORING WARNING SIGNS AT MINE: The Sago coal mine was issued 208 safety citations by the MSHA in 2005, a fourfold increase over 2004. Nearly half of the citations were "serious and substantial," such as roof-falls. That pattern "worries safety experts, who say it raises serious questions about mine management - and the efficacy of government inspections." Many argue it should have spurred more decisive action. Said former MSHA Administrator Davitt McAteer, "When the numbers are going in the wrong direction, management has not been doing its job. It's not the worst mine record, but when you've got three times the national accident rate, something is wrong." "The mine should have simply been closed," said Jack Spadaro, a former MSHA inspector who was granted federal whistle-blower status four years ago.

INSIGNIFICANT FINES: Despite the numerous problems, the biggest single fine at Sago "was $440, about 0.0004 percent of the $110 million net profit reported last year by the mine's current owner, International Coal Group Inc." This is not an isolated problem. "The number of major fines over $10,000 has dropped by nearly 10 percent since 2001," a Knight-Ridder analysis found, adding that "less than half of the fines levied between 2001 and 2003 - about $3 million - have been paid." Last week, White House Press Secretary Scott McClellan defended the White House record: "In fact this administration proposed a fourfold increase in fines and penalties for violations of the Mine Safety and Health Administration rules." This apparently isn't true. While Labor Secretary Elaine Chao has spoken of raising MSHA penalties over the last two years, "the administration never actually submitted a proposal to raise those fines."

WEAKENED SAFETY REGULATIONS: Mine safety standards have been rolled back over the last five years. "Under Bush, 17 of 26 regulations proposed by the Clinton administration were dropped or withdrawn, and the agency began a series of high-profile 'cooperative alliance' agreements with industry to promote safety through education, posters and other voluntary programs." The administration has not proposed a single new mine-safety standard or rule during its tenure, according to the AFL-CIO. Two years ago, the administration was urged to reverse this trend. The Government Accountability Office in 2003 faulted MSHA for "failing to follow through when it found violations," and said the agency did "not provide adequate oversight" to ensure that inspectors were enforcing compliance. The Labor Department Inspector General found similar problems in 2002.

OVERSIGHT AGENCY STARVED: Another means of weakening enforcement is cutting back on inspectors. Last February, President Bush asked Congress to appropriate $280 million for MSHA, cutting the number of full time positions in the agency by 146. That proposal was approved by Congress just before Christmas on narrow votes in both Houses. Under President Bush, MSHA leadership also "advocated a less confrontational style and gave inspectors a less-intimidating job title: 'compliance assistance specialists.'"  Former MSHA director Davitt McAteer calls today's agency a "paper tiger."

PUBLIC KEPT IN THE DARK: Under Bush, the MSHA has eliminated or scaled back programs that "allowed public access to records related to safety performance and accident investigations." For instance, the Washington Post noted, the MSHA "halted the release of notes from mine inspections, which the agency had routinely released under the Freedom of Information Act for a quarter-century." According to union officials and former agency employees, the administration also "shifted many routine accident investigations into closed-door proceedings, in some cases denying entry even to union officials and lawyers representing injured mineworkers."

FAILED LEADERSHIP: In 2001, President Bush appointed David Lauriski to head the MSHA. A former mining executive, Lauriski spent the next years rescinding "more than a half-dozen proposals intended to make coal miners' jobs safer, including steps to limit miners' exposure to toxic chemicals." Lauriski resigned in scandal in late 2004 shortly after it was found that the agency had improperly awarded no-bid, single-source contracts to several firms, two of which had ties to Lauriski and one of his assistants. It took a full ten months for the White House to even nominate a replacement for Lauriski and the Senate has yet to act on his confirmation leaving the agency without a permanent director now for 14 months.

MINE RESCUE SYSTEM FLAWS IGNORED: In what the New York Times calls "perhaps the most heartbreaking question raised by a heartbreaking accident," experts are concerned that some of the miners, who survived at least ten hours after the explosion, might have been saved if rescue efforts had begun earlier. Federal law requires mines to have two rescue teams available, "but does not require mines to have their own rescue teams as long as another team can arrive on site within two hours." The first rescue teams in Sago "did not enter the mine until more than 11 hours after the explosion." This precise scenario had been a concern for years. The Charleston Gazette analysis found concerns over the last decade that the mine rescue system "is growing ever short on personnel and is in major need of reforms." Yet in 2002, in direct contravention to recommendations of the Clinton administration in 1999, then-MSHA director Dave Lauriski "halted work on revising MSHA's 15-year old mine rescue regulation."