American Association for Affirmative Action Announces 'Serious Reservations' About Supreme Court Nominee Samuel Alito

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Association urges Senate to apply “closest scrutiny” of Alito’s record regarding equal opportunity and affirmative action laws

The American Association for Affirmative Action (AAAA), an association of equal employment opportunity (EEO), diversity and affirmative action professionals founded in 1974, announced serious reservations about the emerging record of Judge Samuel Alito, nominated to serve as an Associate Justice of the U.S. Supreme Court.

AAAA also called for the Senate Judiciary Committee to apply the “closest scrutiny” in its examination of Judge Alito’s record on equal opportunity and affirmative action laws. AAAA’s President, Robert W. Ethridge, stated that, “There is a very troubling record emerging that demands a thorough investigation before the Judiciary Committee votes on Judge Alito’s nomination.”

In his 1985 application to be the Reagan Administration’s Deputy Assistant Attorney General in the Office of Legal Counsel, Samuel Alito expressed his support of the “same philosophical views” that he believed were central to the Administration. In this application, Alito highlighted his work as Assistant Solicitor General on affirmative action and reportedly wrote that he was “particularly proud” of his “contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed ….”

Judge Alito’s application described the efforts of the Reagan Justice Department to restrict affirmative action and court-awarded remedies for discrimination as “quota” litigation. In one such case, Alito signed a brief arguing for restricting affirmative action remedies, even in cases where discrimination was intentional, egregious, and long-standing. In Local 28 of the Sheet Metal Workers’ International Ass’n v. EEOC, the Solicitor General’s brief advanced the extraordinary theory that relief in Title VII cases could be granted only to “identifiable victims of discrimination,” contradicting an earlier view of the EEOC itself. The Supreme Court rejected this argument.

In Local Number 93, International Association of Firefighters, AFL-CIO v. City of Cleveland, Alito signed on to an amicus brief seeking to reverse a consent decree that included numerical goals for the promotion of black firemen. By a 6-3 vote, the Supreme Court again rejected the Solicitor General’s argument and upheld the affirmative action plan.

In the months before Alito applied for a job with Attorney General Edwin Meese, Meese waged a fierce campaign to have President Reagan abolish Executive Order 11246, signed by President Lyndon Johnson in 1965. The Order requires that federal contractors not discriminate in employment and that they use affirmative action.

Ultimately, two-thirds of the Reagan cabinet repudiated the extreme views of the Justice Department and a coalition of corporations, members of Congress and civil rights organizations successfully defeated Meese’s campaign against affirmative action. Shirley J. Wilcher, Interim Executive Director of AAAA, was responsible for enforcing the Executive Order when she served as deputy assistant secretary of Labor.

“The Executive Order and its regulations do not require or condone preferential treatment or quotas. The Order was created to prevent discrimination and to remedy it,” she said.

There is nothing subsequent to Mr. Alito’s tenure in the Reagan Administration to suggest that he has moderated his views on equal opportunity law enforcement.

“In civil rights cases he has often argued for higher barriers that victims of employment discrimination would have to overcome to secure remedies for such discrimination,” President Ethridge said. For example, in Bray v. Marriott Hotels, Judge Alito’s colleagues said Title VII of the Civil Rights Act of 1964 “would be eviscerated” if Judge Alito’s approach were followed.

In Nathanson v. Medical College of Pennsylvania, Judge Alito dissented in a disability rights case where the majority said: “Few if any Rehabilitation Act cases would survive” if Judge Alito’s view were the law.” And in Sheridan v. DuPont, he was the only one of 11 judges on the court who would apply a higher standard of proof in a sex discrimination case.

“This is not the time for the judiciary, a longstanding refuge for victims of discrimination, to reverse fifty years of progress,” commented President Ethridge. “The record emerging suggests that Judge Samuel Alito is not prepared to represent all Americans or to fill the shoes of the distinguished Justice Sandra Day O’Connor,” he added.

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