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Opening Argument - Borking Alito: He Is Neither Far-Right Nor Activist Opening Argument - Borking Alito: He Is Neither Far-Right Nor Activist

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Opening Argument - Borking Alito: He Is Neither Far-Right Nor Activist

November 5, 2005

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Liberal critics and many media outlets have spewed tons of misleading stuff about Judge Samuel A. Alito Jr., particularly about his supposed views on abortion and about the significance of two Sandra Day O'Connor opinions disagreeing with prior Alito opinions. So here's some straight stuff.

The claims that Alito is a "far-right activist" are laughable, except to far-left activists. He richly deserves the praise that he has received from colleagues and friends across the political spectrum for his powerful mind, intellectual honesty, and fairness.

The American people will figure this out. Any effort to filibuster Alito seems very likely to fail, and likely to backfire against Democrats. The Senate will then confirm him by 60-40, give or take five votes, I'd wager. Most of the no votes (and, alas, many of the yes votes) will reflect political posturing and herd instincts rather than careful analysis.

Once installed in Justice O'Connor's seat, Alito will be an exceptional justice. His rulings will probably be congenial to the broad middle of the electorate. He will be to the right of O'Connor -- that is, the O'Connor of recent years, who has been markedly more liberal than she was before 1991 or so. Alito will probably be to the left of Antonin Scalia, albeit with less of a libertarian streak. He will be well to the left of Clarence Thomas, and far more respectful of precedent.

Alito will try as hard as anyone -- and far harder than O'Connor -- to be intellectually honest and analytically rigorous, and to keep his political preferences out of his legal rulings. He will therefore disappoint the most passionate political conservatives and horrify many liberals.

The notion of an apolitical justice may seem preposterous to academics and journalists who see judges as politicians in black robes, and view their opinions and citations as camouflage for preconceived ideological agendas. But Alito's opinions show that he takes the ideal of judicial restraint very seriously. Both conservative and liberal colleagues confirm this.

On abortion, Alito will probably give elected officials somewhat more power to impose restrictions, especially on late-term abortions, than has the post-1991 O'Connor. But I very much doubt that he will ever overrule Roe v. Wade or uphold any major barrier to early abortions. On religion, he will probably support greater freedom for minority sects and be more receptive to government sponsorship of nondenominational religious symbols.

He will probably make no effort to unravel established gay rights and will defer to the democratic process on whether to legalize gay marriage. On criminal justice, the former prosecutor will bring the Court more expertise than has anyone since Earl Warren, without Warren's passion for expanding defendants' rights.

Some of Alito's 300-plus opinions sound outrageous when taken out of their factual context. And some strike me as probably erroneous. But I have not come across a single one that can plausibly be called extreme or unreasoned.

To correct a few of the more egregious misrepresentations:

* The Brady Center to Prevent Gun Violence has called Alito "Machine Gun Sammy" and has asserted that he "favors legal machine guns."

This is a lie. It is purportedly based upon a 1996 dissent in which Alito argued for striking down a federal law that bans private possession of machine guns. In fact, this dissent shows only that Alito favors scrupulous adherence to Supreme Court precedent.

Alito argued that under a major 1995 high court decision involving similar facts, the machine-gun ban was not a valid exercise of Congress's power to "regulate [interstate] commerce" unless and until Congress took the trouble to show that purely intrastate possession of machine guns had a substantial effect on interstate commerce.

The majority disagreed. But this disagreement was rather inconsequential, because Alito stressed that to make the machine-gun ban valid, Congress need only dot its i's and cross its t's by documenting an effect on interstate commerce.

* Charles Babington of The Washington Post and others have spoken of Alito's "opposition to the Family and Medical Leave Act."

False. Alito did not oppose that law in any way. Rather, he ruled in 2000 that the logic of recent Supreme Court precedents barring damage lawsuits against states under the federal age and disability discrimination laws also extended to the Family and Medical Leave Act. A Clinton appointee and a Johnson appointee joined Alito's unanimous opinion, and most other appeals courts agreed.

The Supreme Court implicitly rejected this interpretation of its precedents in a similar case in 2003. But that "unexpected" decision, as Linda Greenhouse called it in The New York Times, represented a reversal of direction, especially on O'Connor's part. Alito had been more faithful to the Court's precedents than the Court itself had.

* Countless academics and reporters have divined an itch to overrule Roe from a 1991 Alito dissent in which he would have upheld Pennsylvania's requirement that a woman notify her husband before having an abortion, unless she feared violence (among other exceptions).

In fact, this dissent contained not a word of hostility to Roe or to abortion rights. Nor do Alito's other opinions, two of which upheld abortion rights. In 1995, he voted to invalidate some Pennsylvania restrictions on Medicaid-funded abortions for women who said that they were victims of rape or incest or that their lives were in danger. And in 2000, he voted to strike down Pennsylvania's ban on the grisly procedure known as "partial-birth" abortion. Alito, holding this result to be required by a very recent Supreme Court precedent, did not hint at his personal views.

The same was true of the 1991 dissent. Alito disclaimed any suggestion that the spousal-notification requirement was (or was not) good policy, other than to say that it would do little good or harm, because it "would be widely evaded and infrequently enforced." He ruled the provision valid under his debatable but carefully reasoned interpretation of six prior, somewhat ambiguous O'Connor opinions.

As of 1991, O'Connor had sharply and repeatedly criticized Roe as overly broad, arguing that the Court should uphold state regulations that "may inhibit abortions to some degree" unless they involved "absolute obstacles or severe limitations."

The Pennsylvania regulation involved neither, Alito argued. It did not require spousal consent. And while inhibiting abortions to some degree, it had not been shown likely to have a "severe" effect on many, if any, women.

O'Connor was to adopt a different view on appeal, in 1992. In the 5-4 decision in Planned Parenthood v. Casey, she co-authored an opinion striking down the same Pennsylvania provision. But as O'Connor herself obliquely acknowledged, this result was not easily reconciled with her own previous opinions. She made no claim that the spousal-notice provision in Casey was a "severe limitation." Rather, she held that it was a "substantial obstacle" -- and that under the revised O'Connor doctrine, substantial obstacles were now unconstitutional.

Casey did not show that Alito had misread O'Connor's prior opinions. It showed that once again, the leftward drifting, notoriously unpredictable O'Connor had changed her mind.

* The Leadership Conference on Civil Rights calls Alito a "judicial activist with a record hostile to civil rights."

Nonsense. Alito was hardly "hostile to civil rights" in 2000, when he dissented from a decision that used a two-year statute of limitations to close the courthouse doors to a former AT&T employee's claim that he had been fired because of his race. And Alito wasn't hostile in 2003, when he overruled state courts and upheld a black death-row prisoner's right to seek a new trial based on evidence of racist comments after the verdict by one of the jurors. Or in 2004, when he ruled in favor of a New Jersey boy who had been denied a transfer to another school after being cruelly and repeatedly harassed by classmates because of his effeminacy and perceived homosexuality.

It's true that Alito has been readier than many judges to deny jury trials to civil-rights plaintiffs whose claims he considers weak. And some responsible critics argue that in his zeal to protect employers from unwarranted lawsuits, Alito may have stretched the law to make it unduly hard for victims of discrimination to prove their cases. The Senate should explore this.

It should also explore liberal analysts' concerns that in split decisions, Alito has taken the conservative side so consistently as to suggest ideological rigidity. The Senate should figure out whether Alito has been more consistently conservative than, say, Justice Ruth Bader Ginsburg has been consistently liberal.

And it should remember that the vote to confirm Ginsburg was 96-3.

 

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