THE BLOG
01/16/2006 01:08 pm ET | Updated May 25, 2011

How Not To Be Scared of Judge Alito

There seems to be a disconnect between Judge Samuel Alito as a person and as a judge. As a person he seems to be modest, quiet, thoughtful, and non-dogmatic. As a judge he is portrayed as far out of the mainstream, although his supporters claim that this picture is too selective. Should we be afraid of what he will do if confirmed to the Supreme Court? This is the broader dilemma beyond the hot-button issues of abortion and privacy rights.

Liberals and moderates complain bitterly about the scorched-earth partisanship in Congress. Let's see if we can look at Alito, then, without rancor.

From his record to date, which amounts to some thousands of cases over fifteen years, the vast majority of them are mainstream. Proof hasn't been offered that Alito is a confirmed reactionary like Justice Rehnquist or a blinkered ideologue like Justice Scalia and his obedient follower Justice Thomas. We are told by close associates that he approaches each case one at a time and is scrupulous about not imposing his personal beliefs on the issue at hand. There are several more points to consider before launching a firebrand crusade against the new appointee:

--Pres. Clinton appointed an out-and-out liberal in Justice Ginzburg, who had close ties with the ACLU. By the same token Pres. Bush has a right to nominate a social conservative.

--Litmus tests for Supreme Court nominees are just as wrong today as when liberals opposed them in the past.

--Alito is not a judicial radical, according to his many past decisions, in the sense that he wants to align himself with a right-wing social revolution a la Newt Gingrich. His conservative stance is bendable.

--True legal conservatives, if Alito is one, have regard for precedent and settled law. In this regard we can hope he is like Chief Justice Roberts. Both might try to restrict abortion, but it seems unlikely that they are out to return to complete illegality.

--The cases qualified for Supreme Court review from the appeals level--up to 80,000 a year--are winnowed down to 80-100 for actual review. Of these, none are easy calls. Alito shows eminent qualifications to grasp such difficult issues. Even his controversial opinion in the Pennsylvania abortion suit, Casey v. Planned Parenthood, was supported by the Supreme Court with the exception of one legal point out of nine.

--Supreme Court justices act more like colleagues than the politically minded often assume. Many decisions are 9-0, many more aren't close calls, and justices influence each other greatly.

One doubts that Judge Alito will grow to the left, as Harriet Miers might have and as Justice O'Connor certainly did. Democrats can filibuster him, but do they think Pres. Bush would find a pro-choice replacement? On my gloomiest days I can foresee a reactionary Congress passing a law to outlaw abortion. I can imagine, however dimly, that the Supreme Court could find some twisted logic that would let such a law stand, as they found twisted logic to hijack the 2000 presidential election against all precedent. But if things go that haywire, won't the 60% of Americans who support abortion rights rise up and give the Congress just what it deserves?

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