THE QUESTIONS NO ONE HAS ASKED OF ALITO

MEMO

To: Members of the Senate Judiciary Committee

From: Morton Mintz

Subject: Your hearing on Judge Samuel A. Alito Jr.'s nomination.

There's no doubt that many of the subjects you are pursuing, women's
rights and presidential powers being foremost examples, are of utmost
importance. But there is also little doubt that many people are being
turned off, not only by the predictable excess of self-serving oratory
and by the bowing and scraping, but also by the emphasis on issues that
few care much about, such as Vanguard. 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 -- just as flesh and blood like you and me -- have a First
Amendment right to spend their money to influence elections. Chief
Justice William H. Rehnquist dissented. "It might reasonably be
concluded," he wrote, "that those properties, so beneficial in the
economic sphere, pose special dangers in the political sphere." The late
Chief Justice 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."

Questions for Judge Alito:

-- 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."

Judge Alito, was the "person" whose basic rights the framers and the
people sought to protect the newly freed slave?

-- Was the "person" a corporation?

-- Is a corporation a person "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, 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 committee member who will raise questions such as the
foregoing with Judge Alito? We'll know very soon.

[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]