Attorney General Ebenezer Rockwood Hoar, President Ulysses S. Grant's nominee to the U.S Supreme Court, was rejected by the Senate in part because he advocated judicial neutrality in a time of judicial partisanship. Times have changed.
President Bush's nomination of Appeals Court Judge Samuel Alito will probably succeed despite the fact that Alito is a rigid ideologue. We should follow Alito's confirmation with interest as he may join those eight other senior citizens who decide social policy for three-hundred million of us. He is an intelligent man, but also a raw partisan choice meant to please the GOP's base rather than the broader populace.
Between funding a 'bridge to nowhere' in Alaska and other pork, GOP senators find time to impress upon the citizenry their belief that Democratic senators should not pry their beaks into a nominee's beliefs. Senate Majority Leader Bill Frist, R-Tenn., an ethical paragon under SEC investigation, announced that his colleagues should ignore 'political ideology' during Alito's confirmation.University of Michigan law professor Richard D Friedman puts the point succinctly, 'Ideological opposition distorts the confirmation process.'
Such thinking is ridiculous, for it is ultimately Alito's beliefs'not his competence and Ivy League schooling'that got him nominated in the first place. Democrats on the Senate Judiciary Committee make that point and will no doubt assess Alito's ideology during the nomination hearings early next year.
'This is not about competence,' Senator Patrick Leahy, D- Vermont, said. 'This is the whole issue of ideology.'
In some ways, Judge Alito's beliefs are admirable. Like Justice Antonin Scalia, Alito has an occasional libertarian streak, broadly interpreting First Amendment rights even for the nastiest core political speech that politically correct censors would expunge. Alito has correctly noted 'that the free speech clause protects ... speech that listeners may consider deeply offensive.'
But on Fourth Amendment privacy rights and Sixth Amendment fair trial rights, Alito's paler colors show as he narrowly interprets the Constitution to limit our rights wholesale.
In Rompilla v. Horn (2004) for example, Judge Alito voted to overturn a district court's ruling that a defendant who had been represented by inadequate counsel should not be sentenced to death. 'While we may hope for the day when every criminal defendant receives [a high] level of representation,' he wrote in the majority opinion, 'that is more than the Sixth Amendment demands.' Whatever else that chilling ruling implies, it eviscerates the Sixth Amendment right to fair trial.
In another capital case, Riley v. Taylor (1995), in which a black man that killed a white liquor store owner in Delaware was sentenced by an all-white jury, Alito's colleagues on the U.S. Court of Appeals for the Third Circuit were startled by his flippant 'attempt to analogize the statistical evidence of the use of peremptory challenges to strike black jurors to the percent of left-handed presidents.'
Judge Alito might not overturn Roe v. Wade, but he clearly would vote to limit abortion rights to the point where Vera Drakes would once again stalk the alleys. As a Third Circuit judge deciding Planned Parenthood v. Casey (1991), he partially dissented to say that women should be required to get permission from their husbands before obtaining an abortion as that was not an 'undue burden.' Whether for good or evil, that ruling, if made law, would both weaken privacy rights and restrict a married woman's control over her body.
If not a firm believer in most rights, Alito is a staunch believer in the eternal rights of property. In the anti-trust case LePage v. 3M (1991), Alito dissented to stick by a corporation's God-given right to form a monopoly. Moreover, he has consistently ruled to protect corporations from lawsuits, especially environmental claims and any action seeking punitive damages.
In reaction to Alito's tenets, a coalition of groups ranging from Moveon.org to Naral Pro-Choice to the NAACP is forming to oppose Alito's confirmation. Adding our voice to theirs, we might phone Sen. Russ Feingold and Sen. Herb Kohl, D-Wis, to urge them to insist on getting answers from Alito during coming hearings.
Of course it will be an uphill battle to block the nomination, or even insist that the nominee answer questions fully, for the simple reasons that Alito, in contrast to Ebenezer Hoar in the First Gilded Age, is perfectly suited for our Second Gilded Age.
