Judge Alito is a Bad Bet
Keep the Supreme Court balanced by moderation in judicial thought
Judge Alito is a Bad Bet
Before its confirmation or rejection by the Senate, Samuel Alito Jr.’s nomination to the U.S. Supreme Court may become the most contentious in recent history. Alito is a conservative’s conservative, according to assessments of his 15-year history as a U.S. Court of Appeals judge in the Third Circuit, and his position on legal abortion (His mother says “Of course, he’s against abortion.”) puts him squarely in the middle of the most irreconcilable constitutional and philosophical conflict in the nation.
The broad suspicion that he might cast a deciding vote to overturn Roe v. Wade, the 1973 landmark decision that affirmed a woman’s private, personal right to choose a safe, professional abortion in consultation with a physician, makes him unsuitable to all but the minority of Americans who believe that the abortion procedure itself is a crime, no matter the reason or the individual woman’s medical or emotional needs.
The mere fact that those anti-abortion believers appear overjoyed at Alito’s nomination, contrasted with their vehement opposition to Bush’s earlier, now withdrawn, nomination of White House Counsel Harriet Miers, makes Alito a prime target for a filibuster by Senate Democrats.
Roe v. Wade is established law, with more than 30 years of challenges behind it, and President Bush’s appointed, confirmed and sitting chief justice of the court has gone on record stating his respect for settled law. That statement indicates that newly seated Chief Justice John Roberts would not seek or vote to undermine that basic right of choice, as it is held today by all U.S. women. That right is guaranteed even more clearly in Tennessee, under our state Constitution’s specific protection of the right of privacy. And the U.S. Supreme Court has regarded that right as implicit in the nation’s grounding document.
Yet conservatives of the anti-abortion bent have sought to limit that right so drastically that it would virtually block physicians from performing abortions. Their lack of respect for the rights of women sometimes seems founded in Old Testament Christian doctrine that gives women only such rights as men would deign to grant them.
If Alito indeed represents that faction, as some of his appeals court opinions, as well as the support he’s getting from the religious right, indicate that he may, he represents a clear danger to what women have fought for and earned in these United States. They’ve gained full citizenship despite the founding fathers’ obvious efforts to leave women out as those founders defined rights under the Constitution they created.
Alito, who has described himself as a “strict constructionist” in his approach to the Constitution, should better define his position in regard to abortion as he submits to Senate questioning and debate. Otherwise, he invites outright rejection or a filibuster supported by both Democrats and moderate Republicans.
Some members of the Republican leadership have already indicated strongly that they feel Senate rules should be changed to eliminate the filibuster option. That would be shortsighted in the extreme. When the tides of politics shift and the Democrats regain a Senate majority, those Republicans who worked to scrap the filibuster would reverse themselves and campaign for its restoration.
It’s a lot like the mood of those conservative-thinking Americans who are now saying they want no more “activist judges” who “legislate from the bench.” In effect, any interpretation of the Constitution or the laws passed by Congress amounts to legislating from the bench. Each side of the political spectrum, conservative and liberal alike, wants that to be so. They just want sitting judges to rule on the basis of their own preferences. They want their activists, not someone else’s.
In the instance that has been opened with the nomination of Judge Alito—whose political philosophy has been compared with Justices Antonin Scalia and Clarence Thomas, avowed conservatives on a divided bench—the most palatable result that reasonable Americans could hope for is a similarly divided court with a moderate justice serving as the swing vote. If Alito were confirmed to take the seat of the retiring Justice Sandra Day O’Conner, who has served admirably providing that moderate, swing vote, who would take her place?
Would it be the new chief justice? That’s hard to bank on, given the paucity of his stated political feelings or philosophical notions. He’s a brilliant legal mind, and elevation to the Supreme Court tends to moderate the extremes many justices have exhibited prior to their confirmation to the court. Let’s hope for a moderate in John Roberts, regardless of the outcome in the Alito matter.
Americans would be better served by a continuation of a balanced court and best represented by one where the rights of women and other minorities are lent full support by a court majority. Judge Alito appears to be the choice of a president who does not respect that concept. Unless he gives us reason to believe otherwise, Alito’s nomination should be turned away by a thoughtful Senate in which advice overrides consent.