Would O'Connor Have Passed the Left's 'Alito Test'?

The left is whipping itself into further frenzy over a newly released memo written by Supreme Court nominee Samuel Alito 20 years ago. As a Justice Department lawyer in the Reagan administration, Alito expressed a strategy to “advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects.”

Only the left is shocked when a conservative lawyer working in a conservative administration acts like a conservative.

The memo argued that the administration should involve itself in a case before the Supreme Court, Thornburgh v. American College of Obstetricians and Gynecologists, to argue that the state regulations on abortion were “eminently reasonable and legitimate.” Alito referred to an abortionist as an “abortionist” and criticized another opinion, which struck down an ordinance that he said was “designed to preclude the mindless dumping of aborted fetuses into garbage piles,” as “almost incredible.”

Sen. Chuck (“I’m perpetually stunned”) Schumer (D-N.Y.) called the memo “stunning” and said it “casts serious doubt on whether Judge Alito can be at all objective on the right to privacy and a woman’s right to choose,” according to The Washington Post.

Ralph Neas, president of People for the American Wayward (PFAW), who’s been inhaling too much of his own smoke, told The Washington Times: It “isn’t just a smoking gun, it’s a smoking cannon.” You’d think their love affair with smoking guns would keep them from trying to gut the 2nd Amendment.

Consider what might have been if the left had discovered a “smoking gun” memo written by Sandra Day O’Connor before she was nominated to the Supreme Court in 1981, in which she expressed criticism of Roe and the Court’s refusal to uphold state regulations of abortion? Worse yet, what if she had done so from her seat on the Arizona Court of Appeals? Oh, the smoke, the outrage, the stun, oh, the humanity! Envision the carnage had she penned the following:

The Roe framework then is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.

But she did so in City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 458 (1983), not as an administration lawyer, but as a justice of the Supreme Court.

What if she had criticized the Court for its ruling in the very case that is the subject of the Alito memo? Imagine castigating the Court for its “ad hoc nullification” of abortion regulations:

This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. … Today’s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.

But she did so in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 814 (1986), not as an administration lawyer, but as a justice of the Supreme Court.

What if O’Connor had written that she would have voted to uphold Missouri’s prohibition against public funding of abortion? Something like, “[A]ppellees’ facial challenge to the constitutionality of Missouri’s ban on the utilization of public facilities and the participation of public employees in the performance of abortions not necessary to save the life of the mother … cannot succeed.”

But she did so in Webster v. Reproductive Health Services, 492 U.S. 490, 523 (1989), not as an administration lawyer, but as a justice of the Supreme Court.

The left’s all in a dither to keep Judge Alito from voting on a case that was argued Wednesday in the Supreme Court, Ayotte v. Planned Parenthood of the Northern New England. New Hampshire law requires parental notification before an unemancipated minor can obtain an abortion. Abortion zealots fear that Alito would uphold the law and write something horrific like:

Parental notice and consent are qualifications that typically may be imposed by the State on a minor’s right to make important decisions. As immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor. Bellotti II, 443 U.S. at 640-641 (opinion of Powell, J.); see also H. L. v. Matheson, 450 U.S. 398, 423, 67 L. Ed. 2d 388, 101 S. Ct. 1164 (1981) (STEVENS, J., concurring in judgment); cf. Thompson v. Oklahoma, 487 U.S. 815, 835, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988) (Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult); Stanford v. Kentucky, 492 U.S. 361, 395, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989) (BRENNAN, J., dissenting) (Minors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience, that juveniles as a class have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of modern life).

But wait, that was O’Connor writing, not as an administration lawyer, but her concurring opinion in a very similar case, Hodgson v. Minnesota, 497 U.S. 417, 458-59 (1990).

So would O’Connor have passed muster with the left if she’d written her views prior to her nomination? Pro-life groups criticized O’Connor’s appointment to the Supreme Court because of what they called her pro-choice voting record in the Arizona Legislature. Apparently her record was enough to satisfy the Left. The National Organization for Women touted Reagan’s choice as a “major victory for women’s rights,” according to the Arizona Republic, July 1, 1992.

When did O’Connor become the love of the left when it comes to abortion? As expected, she “redeemed” herself in 1992 when she swung her seat to the left in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 845-46 (1992), embraced abortion, and never looked back: “After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.” It was here that O’Connor “clarified” her undue burden test that is the test applied in all abortion cases.

When Planned Parenthood of Southeastern Pennsylvania v. Casey was in the 3rd Circuit in 1991, Judge Alito, not lawyer Alito, painstakingly reviewed O’Connor’s abortion jurisprudence and concluded that the Pennsylvania abortion regulations withstood O’Connor’s undue burden test when compared with the regulations that she upheld or would have upheld in her opinions to that point.

Alito had no reason to anticipate O’Connor’s sudden shift to the left the following year. Nonetheless, the left excoriates him for voting to uphold a spousal notification requirement. The fact that in three other cases as a lower court judge faced with Supreme Court precedent, he voted against abortion regulations, matters not to the left.

Truth is, the left is desperate and still smarting from their failure to block the confirmation of John Roberts as Chief Justice of the Supreme Court and the withdrawal of Harriet Miers’ nomination, which they saw as the lesser of evils when compared to someone like Judge Alito. And they’re pulling out all the stops and “smoking guns” to defeat his confirmation.

PFAW and others are ranting over Alito’s “devotion to right-wing orthodoxy” expressed in his 1985 job application seeking employment in the Office of Legal Counsel within the Reagan administration. Alito wrote:

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.

Unless there’s a stream with two left banks, there’s no way those words express anything but “mainstream” opinion. That, coupled with his impeccable integrity, intelligence, conciliatory temperament and his 15 years of judicial experience on the U.S. Court of Appeals for the Third Circuit, explains why the left is having trouble pulling the Democrats together to deny this most deserving Judge a seat on the Supreme Court.
Take for example, Sen. Ben Nelson (D-Neb.), a member of the Gang of 14, which claims the supreme right to declare when “extraordinary circumstances” exist to “justify” filibustering a nominee. Nelson wrote the following about Judge Alito in the Omaha World-Herald, November 13, 2005:

By all accounts, Judge Alito is a nominee with impeccable judicial credentials and experience. … For me, when it comes to judicial nominees, the issue is judicial activism. Does the nominee want to make law or apply law? The answer to this question is central to the constitutional ideal of separation of powers and could disclose the intent of a nominee to act as a legislator instead of an adjudicator. … In my meeting with Judge Alito on Nov. 2, he assured me that he was carrying no political agenda to the bench. I asked him if he envisioned himself carrying a hammer and chisel and looking to forge new law. He assured me that he would consider each case on its merits and would bring no agenda to the bench. The president’s nominees, especially to the Supreme Court, deserve an up-or-down vote, even if the nominee isn’t popular with the special-interest groups in Washington.

Democrats love any smoking gun that hurts the administration but they’re smart enough not to fire one at their own political heads.