When President Bush gave his State of the Union address on January 31, there was a new Supreme Court justice sitting in the front row who will be key in implementing the Bush agenda for many years to come.

Just hours before the speech, Judge Samuel J. Alito was sworn in as the 110^th Justice of the United States Supreme Court, taking the place of retiring Justice Sandra Day O’Connor. His swearing-in ceremony, presided over by the new Chief Justice John Roberts, came only moments after the final vote in the Senate confirmed him by a vote of 58-42.

The rapid sequence of events – from vote, to oath, to a front row seat bedecked in black robes – came only after a lengthy, hard-fought battle to keep Justice Alito off the bench. The vote was the closest confirmation for a nominee since Justice Clarence Thomas was confirmed 52-48 in 1991.

"Many civil rights veterans look at today's court with great trepidation," said EJS President Eva Paterson who played a leadership role in mobilizing the opposition effort. "For decades we have relied on the federal courts to protect civil rights, a woman's right to choose, the rights of workers, the disabled, immigrants, and the accused. We will need to be creative in our strategies, and seek new arenas of struggle, to ensure that the rights of the most vulnerable Americans are not diminished.

“The problem is not that Judge Alito is a conservative. Justice Sandra Day O’Connor is a mainstream conservative and she has played a pivotal role. The problem is that Judge Alito holds extreme views, and that he has a history of trying to impose those views from the bench,” added Paterson.

Key Role of Coalition

EJS, as part of the Coalition for Fair and Independent Judges (CFIJ), played a key role in exposing Alito’s anti-civil rights rulings, and in bringing about the call for a filibuster of the candidate whose record shows that he cannot be counted on to protect American’s most fundamental rights and liberties.

The multi-pronged effort of the CFIJ began with a massive mobilization of phone calls and e-mails to Senator Dianne Feinstein and a street rally in front of the Senator’s San Francisco office delivering petitions with tens of thousands of signatures calling for a no vote. The rally included speakers from the women’s movement, labor, civil rights and environmental organizations and was widely covered by the press.

Meeting with Senator Feinstein

On the eve of the Judicial Committee hearings, a high-powered delegation, including EJS Board members James Brosnahan and Professor Margaret Russell and EJS Director of Law and Public Policy Kimberly Thomas Rapp, had a meeting with Senator Feinstein and provided her with background information and key questions to be addressed by the candidate.

“Judge Alito supports a radical theory of presidential power, called the ‘unitary executive,’” explained Russell, “which would remove many of the checks and balances created by our nation’s founders to protect our liberties and prevent the President from gaining absolute power.

“In addition, he made it difficult for victims of discrimination to have their day in court. And he has used his position as a federal judge to oppose reproductive freedom, clean water protection, and a ban on machine guns,” she added.

“During the Alito hearings, it became evident that many members of the Judiciary Committee ignored certain facts,” said Brosnahan, a partner with Morrison & Foerster LLP. “For example, Americans will notice that the nominee has no opinions on important legal issues, and that he ignored the only woman on the Committee when the subject of abortion was debated.

“Americans know that as the Committee sat, American men and women were dying in Iraq and Afghanistan to protect the same Constitution that will now be diminished,” Brosnahan added.

CFIJ members were heartened when Senator Feinstein announced that she would vote no on the confirmation. But just a few days later, they were deeply disappointed when she stated on national television that she would not support a filibuster.

Pushing for a Filibuster

Paterson and Susan Serrano, an attorney with the Asian Law Caucus who was the former EJS Legal Director, quickly drafted a powerful letter asking Senator Feinstein to take a leadership role to filibuster the Alito nomination. Members of pro-choice, environmental and clean money organizations provided crucial input on the judge’s record in those areas. “If Judge Alito is confirmed to the Supreme Court, the civil rights gains made over the last five decades will indisputably be reversed,” the letter stated. “The stakes could not be higher.”

Within 48 hours, the letter had garnered the signatures of hundreds of organizations and individuals and was quickly dispatched to Senator Feinstein.

Events took another dramatic turn on January 26. The two Senators from Massachusetts, John Kerry and Edward Kennedy, announced that they would demand an extended debate on the nominee. They were quickly joined by others, including California Senator Barbara Boxer. To successfully block the nomination, they would need 41 senators.

“Shutting down debate over Samuel Alito’s record just two days into the process is outrageous and an affront to democratic principles,” said Wade Henderson, executive director of the Leadership Conference on Civil Rights. “Americans have a right to know just how bad Alito’s record is and what his confirmation would mean for their rights and freedoms.”

The New York Times joined in with a scathing editorial, “Senators in Need of a Spine.” It stated, “It is hard to imagine a moment when it would be more appropriate for senators to fight for a principle. …The judge’s record strongly suggests that he is an eager lieutenant in the ranks of the conservative theorists who ignore our system of checks and balances, elevating the presidency over everything else.”

With just 48 hours before the cloture vote, the Senators had to decide whether they would take a stand.

It was then that Senator Feinstein announced her no vote on the cloture resolution. She took special note of the letter from her California constituents, stating, “I ask unanimous consent to have printed in the Record a list of California organizations that oppose Judge Alito's confirmation and a set of letters from pro-choice organizations following my full remarks.”

According to San Francisco Chronicle columnists Matier and Ross “… by Friday, Feinstein apparently had heard the message load and clear from constituents urging her to support the filibuster.

“’It was very strong in terms of Californians contacting us in support of the filibuster, said Feinstein Spokesperson Howard Gantman,’” the columnists reported.

Senator Feinstein’s leadership stance helped build the ranks of Democrats who supported the filibuster, including Minority Leader Harry Reid of Nevada and Minority Whip Dick Durbin of Illinois. By Monday, the number had climbed to 25, including all but three of the women Democratic senators, Senator Barak Obama, the only African American in the Senate, and Independent James Jeffords of Vermont. But it was not enough to sustain a filibuster.

Only one of the Senate's 55 Republicans voted against Alito's confirmation, Senator Lincoln Chafee of Rhode Island, a moderate facing re-election this fall in an overwhelmingly Democratic state. All but four Democrats voted against Alito; those who broke party ranks and voted for confirmation were Senators Robert Byrd of West Virginia, Tim Johnson of South Dakota, Ben Nelson of Nebraska and Kent Conrad of North Dakota. All four of the states represented by the senators were carried by Bush in both 2000 and 2004.

“Our elected leaders abandoned their obligation to protect those most reliant on an independent judiciary,” said Henderson.

A few hours later, U.S. Supreme Court Justice Samuel Alito donned his black robes and sat in the front row as the President outlined his plan to keep America strong by increasing domestic surveillance of Americans and stopping activist judges who want to “redefine marriage.”

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