Despite threatening disarray on nearly all fronts, President George W. Bush moved quickly and with characteristic political focus to nominate Judge Samuel A. Alito Jr. to replace Harriet Miers as his choice for the seat on the Supreme Court that will eventually be vacated by Justice Sandra Day O’Connor.

What remains unclear is how badly damaged Bush has been by the indictment of the vice president’s chief of staff, I. Lewis “Scooter” Libby, in the CIA leak case as well as the forced withdrawal of Miers’s Supreme Court bid. Both were blows to Bush’s once invincible hold on the nation’s political agenda, an authority now undermined by his foundering domestic and foreign policies. Most surprising was the fact that Miers’s problematic nomination was derailed by a rebellion among the president’s most articulate and ideological conservative supporters, who demanded he nominate a candidate with strict, and well-known, constructionist or “originalist” views on constitutional interpretation. If the celebratory reaction among conservatives is any indication, the president has done precisely that in putting forward the “reliable” Judge Alito.

Like Chief Justice John Roberts, Alito’s credentials and personal integrity are hard to fault. Given the delicate balance among the justices on the most neuralgic issues likely to come before the Court, the Alito nomination has predictably given liberal groups, especially abortion-rights advocates, apoplexy. Opponents point to an Alito dissent as an appeals court judge that upheld a provision of a Pennsylvania law, eventually ruled unconstitutional in the Supreme Court’s bitterly contested Casey decision, which would have required a married woman to notify her husband before getting an abortion. Abortion-rights groups see Alito’s dissent as a clear indication of his hostility to Roe, and as evidence, moreover, of a patronizing and anachronistic attitude toward women. Alito, however, argued that the state could require such spousal notification given the unique legal status of marriage. Whatever one thinks about the practical impact and admittedly complicated circumstances that might rightly limit notification requirements, abortion-rights groups should hesitate before championing a law that appears to elevate personal autonomy over the mutuality and shared obligations marriage entails, and that the state has every reason to encourage and protect.

Alito’s proven qualifications, modest demeanor, and carefully crafted rulings have been praised by Democrats and Republicans alike. Despite his lengthy paper trail, it is unclear exactly how “originalist” or ideological Alito is likely to be as a justice. As an appeals court judge, his task was to interpret Supreme Court rulings, and evidently he did so scrupulously. Sitting on the Supreme Court, however, Alito would have much greater freedom to let his philosophical views about the proper role of the law influence his judicial decision making. There is every indication that Alito’s thinking on federalism, executive power, church-state relations, gender discrimination, environmental issues, and Congress’s legislative power, especially under the commerce clause of the Fourteenth Amendment, is likely to frustrate those with an expansive view of the Court’s mandate. In short, there is little doubt that the Court’s jurisprudence will become more predictably “conservative,” should Alito be confirmed.

In some respects, especially regarding abortion law and church-state issues, Alito’s ascendancy to the High Court is not an undesirable prospect. Conservatives have been right to challenge the overreaching nature of some Supreme Court decisions. Having won the last presidential election, and with his own party in control of the Senate, a Republican president is clearly in a position to change the Court. Still, perhaps what is more important than whether Alito will change the Court is how he will change it. Will he be a radical in the mode of Antonin Scalia and Clarence Thomas, both of whom can be described as “activist” justices eager to overturn much of the Court’s recent jurisprudence? Or will Alito be an incrementalist, someone who understands that judicial precedent is important to both political comity and the moral authority of the Court? Except in the most exceptional circumstances, the Supreme Court best serves the nation and justice by moving the law by degrees rather than turning established practice upside down. Determining if Alito is a legal conservative in this sense should be the principal task of the Senate hearings scheduled to begin in January.

Unfortunately, extremists on both the Left and the Right continue to urge waging Armageddon over the Supreme Court. That is the sort of heedless rhetoric that has led this administration into one failure after another. It should be resisted by members of both parties.

November 8, 2005

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Published in the 2005-11-18 issue: View Contents
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