Judiciary

More Smiles for Scalito

Since I wrote November 7 in praise of Judge Samuel Alito’s nomination to the U.S. Supreme Court, more information has become public that should recommend him to pro-life and pro-family Americans. In fact, all those who favor the rule of law and republican self-government should be delighted with the choice of Alito, regardless of their views on abortion, marriage, criminals’ rights, or anything else. Those who favor capricious rule by unelected judicial dictators are, of course, disappointed, and that includes most so-called “liberals.”

Some conservative Americans might be concerned by the arguments that the anti-Alito forces are beginning to marshal in what is only the beginning of a very nasty assault against him. Supporters of left-wing supremacy in the judiciary will accuse Alito of, among other things, favoring strip searches of 10-year-old girls, disbelieving in democracy, and supporting an end to racist government programs. The first of these accusations has the most potential to damage Alito’s reputation among the great swath of pro-family Americans who may hear “strip search of 10-year-old girl” and little else about the case in question.

First, the very positive news about Alito: As the Washington Times first reported, Alito wrote on a job application in 1985, “It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan’s administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.” In attempting to become a deputy to Atty. Gen. Ed Meese, Alito also said, “I am and always have been a conservative. I am a life-long registered Republican. . . . I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values. In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate.”

Not stopping there, Alito named the conservative influences on his thought. “When I first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley Jr., the National Review, and Barry Goldwater’s 1964 campaign,” he wrote. “In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.”

Combine this with his excellent record of judicial restraint, his membership in the constitutionalist Federalist Society, and his mother’s statement that “of course he’s against abortion,” Alito has all the makings of a fine Supreme Court justice. He has not been called ”Scalito,” or “little Scalia,” for nothing. Religious Americans, especially, should note that Alito is widely known for favoring the accommodation of religious belief and expression whenever feasible.

We cannot be certain that Alito will vote to overturn Roe v. Wade, even though he said 20 years ago that he believed “the Constitution does not protect a right to an abortion.” We can only hope, based on very solid grounds. Anyone who openly promised to overturn a long-standing precedent such as Roe would not be nominated, and if he were, would not be confirmed by the Senate. The standard has long been set: Nominees do not say how they would rule on specific cases.

As for the poor little girl, Alito made the correct decision. Dissenting from Doe v. Groody (2004), he argued that police could not be sued for searching the girl even though their search warrant gave them explicit permission to search only a suspected drug dealer, the girl’s father, living in the same house (a female officer performed the search of the girl with the girl’s mother present). Alito came to the conclusion that it was reasonable enough for the police to search everyone on the premises given the evidence they had, and that therefore they should not be exposed to lawsuits for doing so.

Note that Alito did not rule that strip searching 10-year-old girls is appropriate, or even that it is generally constitutional without a warrant. Note, too, that the girl was strip-searched, not body-cavity searched. Alito ruled only that the police could not be sued for doing so under these particular circumstances, and he had plenty of legal precedent to back his opinion. In our legal system, policemen typically cannot be sued for good faith acts performed in the course of their duties, even if they make mistakes.

As for the merits of strip-searching children, it is necessary that the police be able to do so, or else drug dealers and other criminals would use children to carry drugs, weapons, and other such items even more often than they do now. If adult criminals know that children cannot be searched, they will exploit those children accordingly.

Liberals will allege that Alito opposes affirmative action programs, which is a lie. Alito wrote that he opposed quotas, not programs that attempt to find qualified candidates among neglected minority populations. That will not please most liberals, who explicitly favor institutionalized racism (against whites and Asians) and sexism (against men), but should please those who favor a race-blind American government.

Sen. Joe Biden (D.-Del.), among others, has wondered if Alito believes in the “one man, one vote” principle since he criticized Warren Court decisions touching the subject. Alito has reportedly been assuring people that he does believe in it. However, the Supreme Court did some silly things with this principle, such as invalidating a New Jersey congressional redistricting plan because population sizes among districts varied by 0.7%. That’s just one example of how the courts have taken the ”one man, one vote” principle to an extreme.

And Sen. Biden had better hope that the courts do not take it even further. It’s especially amusing to see him backing “one man, one vote” since the U.S. Senate in which he serves is structured in opposition to that principle, and was deliberately made that way by our Founding Fathers. Biden and his fellow senator from Delaware (population 830,000) have the same voting power in the Senate as do the two senators from California (population 36 million), giving each Delaware voter proportionally far more influence over the legislation of the United States of America than each California voter. The voters in a state of less than one million people have exactly the same amount of representation in the Senate as those of our nation’s largest state.

Because of a pact with Democrats made by Senate Judiciary Committee Chairman Arlen Specter (R.-Pa.), the media and the Left have plenty of time to figure out how to blacken the name of Alito, one of the nation’s most respected jurists. Hearings do not begin until January 9, and a Senate floor vote on his nomination is not expected until January 20. Don’t let their distortions, either the ones discussed earlier or new ones yet to emerge, fool you.