Here is my running commentary on today’s New York Times editorial opinion entitled “Judging Samuel Alito”:
Judicial nominations are not always motivated by ideology, but the nomination of Judge Samuel Alito certainly was. President Bush’s previous choice to fill Justice Sandra Day O’Connor’s seat on the Supreme Court, Harriet Miers, was hounded into withdrawing by the far right, primarily because she appeared to hold moderate views on a variety of legal issues. President Bush placated Ms. Miers’s conservative critics by nominating Judge Alito, who has long been one of their favorites.
How does the Times know what motivated President Bush? The American Bar Association just gave Judge Alito its highest rating. Why not be charitable and assume that the nomination was motivated by a desire for judicial excellence? Suppose, for the sake of argument, that the nomination was motivated, at least in part, by ideology. What’s wrong with that? Weren’t Bill Clinton’s nominations motivated by ideology? Did the Times object? And why does the Times assume that Judge Alito will seek to implement his personal values? Just because he’s conservative doesn’t mean his conservatism will affect his judging. John F. Kennedy was Roman Catholic. Was he bound to let his religion influence his actions as president? Can’t people set their personal views and values aside in order to do a job? Don’t we expect that of referees, umpires, scholarly reviewers, judges, journalists, interviewers, scientists, and public servants? By the way, do you think the Times would be calling Harriet Miers “moderate” if she were still the nominee?
Judge Alito’s confirmation hearings begin tomorrow. He may be able to use them to reassure the Senate that he will be respectful of rights that Americans cherish, but he has a lengthy and often troubling record he will have to explain away. As a government lawyer, he worked to overturn Roe v. Wade. He has disturbing beliefs on presidential power—a critical issue for the country right now. He has worked to sharply curtail Congress’s power to pass laws and protect Americans. He may not even believe in “one person one vote.”
We must distinguish between the legal rights we have and the legal rights we ought to have, under the Constitution. There are three possibilities: (1) we have more legal rights than we ought to have (in other words, the Court has invented rights); (2) we have fewer legal rights than we ought to have (in other words, the Court has ignored rights); and (3) we have no more and no fewer rights than we ought to have. Why does the Times assume the second or third possibility? Many Americans think the first possibility is actual, i.e., that the Court has invented legal rights. If so, then this should be corrected forthwith. That Americans cherish rights that they ought not to have (under the Constitution) is irrelevant. As for what Judge Alito said or did as a “government lawyer,” that is neither here nor there. Different roles have different responsibilities. Rational, conscientious people discharge their role responsibilities and don’t confuse roles. Imagine treating your children the way you treat your colleagues, friends, or students! Finally, whether Judge Alito’s beliefs on presidential power are “disturbing” depends on one’s theory of government. I happen to think his beliefs are just right. And if Congress passes laws that are outside its constitutional authority, any judge, not just Judge Alito, should strike them down.
The White House has tried to create an air of inevitability around Judge Alito’s confirmation. But the public is skeptical. In a new Harris poll, just 34 percent of those surveyed said they thought he should be confirmed, while 31 percent said he should not, and 34 percent were unsure. Nearly 70 percent said they would oppose Judge Alito’s nomination if they thought he would vote to make abortion illegal—which it appears he might well do.
What should the White House do: express doubts about the confirmation? That’s absurd. So people are split on Judge Alito. Is that a surprise? The country is split on all manner of moral matters. As for the poll question about abortion, the Supreme Court lacks the power to “make abortion illegal.” If the Court overrules Roe v. Wade, each state will decide what to do about abortion. The issue will be returned to the people of the states, where it should have stayed. How can such a biased poll question be taken seriously, much less cited as a premise?
If President Bush had chosen a pragmatic, mainstream conservative like Justice O’Connor to fill the seat, these confirmation hearings would be a breeze. But now, the Senate has a duty to delve into the many areas in which Judge Alito’s record suggests he is an extremist, including:
Why should President Bush take the “breezy” or easy way out? He’s been elected twice. He should do what he thinks right, not what will generate the least resistance. He should appoint judges who share his constitutional philosophy. Did Bill Clinton choose “pragmatic, mainstream liberals”? Did the Times criticize him because he didn’t?
ABORTION Judge Alito has not only opposed Roe v. Wade, he has also worked to overturn it. When he applied for a promotion in the Reagan administration in 1985, he wrote that he was “particularly proud” of his legal arguments “that the Constitution does not protect a right to an abortion.” In meetings with senators, Judge Alito has talked about his respect for Roe, but he has said nothing to discourage his supporters on the religious right who back him because they believe he will vote to overturn it. The American people have a right to know, unambiguously, where Judge Alito stands on Roe.
Again, different roles. As for the so-called right to know, Judge Alito cannot and should not comment on Roe in particular, since he will almost certainly be called upon to decide whether it should be overruled. Judge Ruth Bader Ginsburg didn’t answer such a question, and I don’t recall the Times taking her to task for it.
PRESIDENTIAL POWER The continuing domestic wiretapping scandal shows that the Bush administration has a dangerous view of its own powers, and the Supreme Court is the most important check on such excesses. But Judge Alito has some disturbing views about handing the president even more power. He has argued that courts interpreting statutes should consider the president’s intent when he signed the law to be just as important as Congress’s intent in writing and passing the law. It is a radical suggestion that indicates he has an imperial view of presidential power.
Forget about the Bush administration, which has only three more years. The question is about presidential power vis-à-vis that of the other branches of government. Does anyone really think that a sitting Supreme Court justice would cede power to a president? And what’s wrong with considering a president’s intent? A law cannot be passed without a president’s approval. Why should Congress’s intent be considered but not the president’s?
CONGRESSIONAL POWER While Judge Alito seems intent on expanding the president’s power, he has called for sharply reducing the power of Congress. In United States v. Rybar, he wrote a now-infamous dissent arguing that Congress exceeded its power in passing a law that banned machine guns. As a Reagan administration lawyer, he argued that Congress did not have the power to pass the Truth in Mileage Act to protect consumers from odometer fraud.
Ours is a limited government. By any reasonable standard, Congress has exceeded its authority in many areas. It’s about time we had a Supreme Court that enforced the Constitution. The Times wants a large, active, intrusive government, even if no such beast was contemplated by the framers of the Constitution. Many problems dealt with by Congress belong to the states.
ONE PERSON ONE VOTE Judge Alito said in his 1985 application that he had become interested in constitutional law as a student partly because of his opposition to the Warren court’s reapportionment rulings, which created the “one person one vote” standard. He seems to still have believed as a 35-year-old lawyer that these cases, which made legislative districts much more fair, came out the wrong way.
The Warren Court ran roughshod over the Constitution. Its excesses are well known and ripe for reversal. As for whether the Court’s reapportionment cases promoted “fairness” or democracy, that’s a matter for debate. The Times simply assumes that the answer is yes.
There are other areas—including civil rights, sex discrimination, the environment and criminal law—where Judge Alito’s record appears extreme. The Senate should question him closely on all of them.
Extremism in defense of liberty is no vice. Moderation in pursuit of justice is no virtue.
The Senate should also explore Judge Alito’s honesty. According to a senator he met with, he tried to dismiss his statement about the Constitution’s not protecting abortion as merely part of a job application, which suggests he will bend the truth when it suits his purposes. Judge Alito has said he does not recall being in an ultraconservative group called Concerned Alumni of Princeton, which opposed co-education and affirmative action. That is odd, since he boasted of his membership in that same 1985 job application. The tortuous history of his promise to Congress to recuse himself in cases involving the Vanguard companies, which he ultimately failed to do, should also be explored.
No New York Times editorial opinion would be complete without an accusation (or imputation) of dishonesty. And look who’s talking! The Times is well known for “bend[ing] the truth when it suits [its] purposes.” Can you say “pot” and “kettle”?
Judge Alito’s nomination is often presented as an abortion rights showdown, but it is much more than that. Those who care about the broad range of rights and liberties that Americans now have, and about honesty in government, should tune into the hearings starting tomorrow—and call their senators with their reactions to what they hear.
I agree with the last part of this. Call your senators—especially if one of them sits on the Judiciary Committee.
Addendum: I'd like to thank Glenn Reynolds for linking to this post. See here. I hope the PowerBlogs server can handle the InstaLanche! (I'm sure it can.) If you're here for the first time, welcome. Enjoy your stay.
Addendum 2: Professor Bainbridge deconstructs the Times's editorial opinion here. Ann Althouse does the same here.