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The Fact That Alito's Appointment Will Make the Court Monolithic Is Reason Enough For the Senate to Reject Him

01/03/2006 05:16 pm ET | Updated May 25, 2011

The Bar Association of the City of New York, the most important Bar Association in the country, has now announced that it found Samuel Alito qualified to sit as a Supreme Justice and approved his nomination. Rest assured the Bush administration will rely heavily on that prestigious "Blue State" endorsement.

The Bar Association wants judicial integrity and intelligence, a jurist who understands the Court as an institution, a jurist who has a judicial temperament, a jurist who is objective. Since Alito fills that bill, they endorse him.

Who in the world is not in favor of those qualities? Is there anyone in Mississippi or Massachusetts or any other state who does not believe judges should have those qualities?

But we are entitled to more. Judge Steven Reinhardt, a respected Senior Judge on the United States Court of Appeals, allowed me to make public a stinging three-page confidential letter he wrote to President Clinton when Clinton lauded his moderate appointees, and refused to appoint controversial (i.e., liberal) judges. He could have wrtten that letter to this Bar Association endorsement and criteria.

Judge Reinhardt wrote Clinton as follows:

You must be aware by now that those most deeply committed to the judicial philosophy expounded by your predecessors laugh triumphantly at your protestations of philosophical objectivity. You must surely be aware how gleeful your predecessors are that this Administration has caved so quickly at almost every sign of opposition, even when it possessed a majority in both Houses. Certainly, you know how astonished they are that you have made life so easy for them. They never expected it to be that way. To say, as you do, that the Clinton Administration willingly accepts the Reagan-Bush administrations' successes in changing the philosophy of the federal courts so radically, and that it has no desire to redress the current judicial imbalance or to try to restore any glimmer of liberal representation to the courts is to abdicate, or more accurately repudiate, your historic responsibilities.

Are you really seriously saying that you have no interest in which philosophy your appointees have as long as they are otherwise qualified? Do you choose at random among those individuals who are "productive," "agile" and have "energy"? Would Charles Cooper, [a prominent Federalist] or Clint Bolick [legal director of the conservative Institute for Justice] be as acceptable to you . . . .? Is there no limit to the panic and spinelessness these days? Im beginning to think so.

Your comment has the same ring of verisimilitude as President Bush's, when he said he was nominating Clarence Thomas because he was the most qualified lawyer in America. No one believed that either. Hypocritical declarations such as the one attributed to you cause people to lose confidence in government officials.

Academics are praising and cricitizing the quality of Alito's scholarship and profundity. But it's all beside the point.

Surely we now all recognize that the essential criteria must be the need for at least a diversified Court – and not a Court, that will decide, for probably the next two decades, against the rights of women, African-Americans, dissidents, the aged and disabled, and environmentalists.

The Bar Association endorsement comes at the exact same time that the Justice Department rejected Senate requests for 45 Office of Legal Counsel opinions, and internal memoranda Judge Alito "wrote or supervised" in that office.

George Bush and Alberto Gonzales have a reason for those particular witholding those documents. The Bar Association never saw them.

They will show that Alito, like Roberts, seeks the exact same results as Scalia and Thomas (albeit on a different path) the Bush line on surveillance and international law, privacy, race and class.

The Conservatives will try and wage the nomination war on the turf the Bar Associations have laid out. As Judge Reinhardt advises us, we must not permit it.