Monday, January 09, 2006

Judging Samuel Alito

The New York Times

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.

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."

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.

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:

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.

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.

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.

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.

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.

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.

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.