To: Members of the U.S. Senate Judiciary Committee
From: Morton Mintz
Subject: Judge Samuel A. Alito Jr.'s nomination.
There's no doubt that many of the subjects you pursued in Judge Alito's confirmation hearings, including women's rights and presidential powers, are of utmost importance. But there is also little doubt that many people were turned off, not only by the predictable excess of self-serving oratory, but by the emphasis on issues that few care much about, such as whether Alito should have recused himself from one case years ago.
So here's a suggestion for a line of questioning that the committee -- whether run by Republicans or Democrats -- has regularly dodged down through the years, but that really, truly matters to most everybody -- men, women, whites, blacks, Hispanics, the elderly, the young, the healthy, the sick. In two words, the subject is, corporate power.
First a bit of background. In a 1978 case, First National Bank of Boston v. Bellotti, the Supreme Court decided, 5 to 4, that business corporations have a First Amendment "right" to spend their money to influence elections. "It might reasonably be concluded," a dissenter wrote, "that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere." He went on to write: "Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist." The dissenter was the late Chief Justice William H. Rehnquist -- a lifelong Republican.
Questions Judge Alito should be asked before you vote to determine if he will sit on our Supreme Court:
-- Do you believe that corporate money in our elections poses "special dangers in the political sphere"?
-- Do you believe "that liberties of political expression" are necessary "to effectuate the purposes for which States permit commercial corporations to exist"?"
-- Do you believe that money is speech? Or is it property?
-- Do you agree that Justice Rehnquist was effectively saying, in the quote that follows, that the state having created the corporation, the state can regulate the corporation: "I would think that any particular form of organization upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation."
Key related questions flow from Section 1 of the Fourteenth Amendment, which was adopted in 1868, soon after the end of the Civil War: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
It was understood that the persons the 14th Amendment sought to protect were the newly freed slaves. Judge Alito:
-- Is the "person" a corporation?
-- Can a corporation be "born or naturalized in the United States "?
Another question flows from Justice Hugo L. Black's dissent in Connecticut General Life Insurance Co. v. Johnson in 1938. "[W]hen the Fourteenth Amendment was submitted for approval, the people were not told that [they were ratifying] an amendment granting new and revolutionary rights to corporations," Justice Black wrote. "The history of the Amendment proves that the people were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments," he continued. "The Fourteenth Amendment followed the freedom of a race from slavery. . . Corporations have neither race nor color."
-- In proclaiming a paper entity to be a person, Judge Alito, was the court faithful to the intent of the framers of the Amendment and to the intent of the people who ratified it?
The prompt for a final group of key questions is Santa Clara County v. Southern Pacific Railroad, a case the Supreme Court had before it not very long after the people ratified the Fourteenth Amendment.
The issue was whether the Amendment's guarantee of equal protection barred California from taxing property owned by a corporation differently from property owned by a human being. Chief Justice Morrison R. Waite disposed of it with a bolt-from-the-blue pronouncement: "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny any person the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."
-- Judge Alito, how would you characterize the court's refusal to hear argument in a momentous case before deciding it?
-- Would you describe the court's decision in Santa Clara County as conservative? As radical? As open-minded?
-- Would you agree that the Court that decided Santa Clara in 1886 failed to meet the standard of judicial conduct that was met by the Court in 1973, when it decided Roe v. Wade only after being fully briefed, hearing oral argument, and deliberating at length?
-- You have expressed profound admiration for Judge Robert H. Bork, calling him one of the outstanding nominees of the 20th Century." As you know, he famously denounced Roe as "a wholly unjustified usurpation of state legislative authority." Without regard as to whether Roe was rightly or wrongly decided, was Santa Clara "a wholly unjustified usurpation of state legislative authority?"
-- Again without regard as to whether Roe was rightly or wrongly decided, how does it strike you that the Court has declared a corporation -- a paper entity that is neither born nor naturalized -- to be a person but has declared a fetus not to be a person?
Is there just one Senate member who will raise questions such as the foregoing with Judge Alito?
Morton Mintz covered the Supreme Court for the Washington Post 1964-1965 and again 1977-1980 and is a former chair of the Fund for Investigative Journalism.