When President Bush said a month ago that Harriet Miers was the most qualified person to be nominated to the U.S. Supreme Court, nobody believed him. Had Bush said the same thing about Judge Samuel A. Alito, Jr., whom he named to replace Miers when she withdrew her nomination, few could have disputed him—not even Sen. Teddy Kennedy (D.-Mass.).
Now Bush has Kennedy and other Senate liberals cornered. The only way they can fight Alito’s confirmation is by going after his judicial philosophy—which is exactly the battle Bush should want and the Republicans can win.
“You have obviously had a very distinguished record,” Kennedy told Alito 15 years ago when the Senate unanimously confirmed Alito to the U.S. Court of Appeals for 3rd Circuit. Kennedy added that he was “sure” Alito would be a good judge.
Other Senate liberals chimed in. Then-Sen. Bill Bradley (D.) of Alito’s native New Jersey predicted he would “make a contribution that will stand the test of time.” Sen. Frank Lautenberg (D.), also of New Jersey, predicted Alito would become “the kind of judge the public deserves—one who is impartial, thoughtful, and fair.”
But conservatives need not be alarmed by the praise liberals heaped on Alito at a time when appellate court nominations were usually not as partisan as they became during Bush’s first term. Despite the good words Democrats showered on Alito in 1990, he did not become a liberal judge. And it is not likely he will morph into a liberal judge on the Supreme Court.
What Kennedy, Bradley and Lautenberg were forced to acknowledge was Alito’s undeniable credentials and sterling record as a public servant.
This is a man who became valedictorian of his high school class, graduated from Princeton, served as an editor of the law review at Yale Law School, then went on to dedicate his life to public service. Although he undoubtedly could have made millions in private law practice, he chose instead to serve his nation: He clerked for a federal judge, worked as an assistant federal prosecutor, argued cases in the Supreme Court for President Ronald Reagan’s Solicitor General’s Office, interpreted the Constitution for the executive branch as deputy director of the Office of Legal Counsel in Atty. Gen. Ed Meese’s Justice Department, and served as the U.S. attorney in New Jersey before being appointed to the federal appeals court by the elder President Bush.
Even at Princeton, a former professor claimed to the New York Times, Alito favored a court ruled by an “original understanding” of the Constitution.
Alito’s long record indicates that he rejects judicial activism, and, unlike some of his more liberal colleagues on the 3rd Circuit, he faithfully carried out controlling Supreme Court precedents even when they came from a Rehnquist court that occasionally did manage to move its own constitutional interpretation back toward originalism.
In the 1996 case of U.S v. Rybar, for example, Alito dissented when other judges on his appeals court declined to apply the principles of the Supreme Court’s 1995 decision in U.S. v. Lopez. In Lopez, in an opinion written by Chief Justice William Rehquist, the Supreme Court overturned the federal Gun-Free School Zones Act that prohibited simple possession of a firearm in a school zone. Congress had used the Commerce Clause—which authorizes it to regulate commerce “among the several states”—to justify the law. But Rehnquist argued that simply possessing a firearm within one state—even in a school zone—did not affect interstate commerce in any meaningful way and was thus beyond the reach of congressional regulation.
In Rybar, the question was whether Congress could prohibit the purely intrastate possession of a machine gun in New Jersey. The 3rd Circuit said it could, but Alito argued in dissent that it could not, asking: “Was the United States v. Lopez a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?”
No liberal would have written that dissent. Nor would any judge who fears the scorn of the liberal establishment.
Alito showed similar courage on 1st Amendment religion cases. He defended the right of Jersey City to display a crèche and menorah at its city hall, and the right of a public school student to bring a picture of Jesus to school for posting in a hallway after his teacher had given students a Thanksgiving assignment to bring in something for which they were thankful.
Liberals have made much of Alito’s opinion in Planned Parenthood v. Casey, in which he would have upheld a Pennsylvania regulation that would have required a woman (with several exceptions) to notify her husband if she was going to have an abortion. The fact is this is a particularly mild and popular restriction on abortion. Alito believed it was consistent with Supreme Court precedent. However, in its own notorious Planned Parenthood v. Casey decision, a one-vote majority of the Supreme Court did overturn this restriction while upholding other restrictions in Pennsylvania’s law and reaffirming Roe v. Wade.
In two other major abortion-related cases, Alito concurred in a ruling that overturned New Jersey’s partial-birth abortion ban, and also in a ruling that a fetus was not a “person” under the 14th Amendment. In both cases, he made clear that this opinion was dictated by Supreme Court precedent. In neither case did he reveal his own views on the constitutional issues at stake.
Would Alito vote to overturn Roe and other activist opinions issued by the Supreme Court over the past 40 years? Nobody can know for sure. But liberals fear his judicial philosophy demonstrates that he might—and that is the minimum fear liberals ought to have heading into a confirmation process for a Republican Supreme Court nominee.