Cal  Thomas

The same blogs that registered extreme opposition to the nomination of Harriet Miers for the Supreme Court are overjoyed by President Bush's selection of Samuel A. Alito Jr. to replace Justice Sandra Day O'Connor.

Manuel Miranda, chair of the Third Branch Conference, who, along with former Bush speechwriter David Frum, was among the first to openly criticize Miers, calls Alito "immensely well qualified" and "a constitutionalist who has weathered one of the more liberal federal circuit courts in the country." Miranda likened the nomination to that of now Chief Justice John Roberts, calling the Alito selection "a grand slam."

Other reactions from conservatives were similarly ecstatic. Americans for Better Justice, which opposed the Miers nomination, issued a statement that said, "Judge Alito possesses both the brilliance and humility necessary in a Supreme Court justice."

Unlike the Miers pick, Alito's qualifications are beyond doubt. That means the debate will center on his judicial philosophy, which positions conservatives for the ideological fight they've been seeking.

That battle will be fought over two main issues: abortion and religious freedom. Liberal Democrats and some Republicans will want to know the reasoning behind Judge Alito's disagreement with the Third Circuit majority in Planned Parenthood v. Casey. In that ruling, as the lone dissenter, Alito voted to uphold Pennsylvania's informed consent, parental consent and reporting and public disclosure requirements. The Supreme Court later affirmed his court's majority decision.

In another highly charged abortion case, Judge Alito voted in favor of spousal notification prior to an abortion. He based his decision on the "undue burden" standard articulated by Justice O'Connor in Supreme Court cases Webster v. Reproductive Services and Hodgson v. Minnesota. The law Alito upheld fell short of giving husbands veto power over their wives decision to have an abortion.

While pro-choicers are already attacking that ruling, it is important to note that spousal notification was not Judge Alito's idea. Pennsylvania voters enacted it with four safeguards allowing a woman to have an abortion without telling her husband: (1) if the woman believed the husband was not the father; (2) if the husband could not be found after diligent effort; (3) the pregnancy was the result of a spousal sexual assault that was reported to the authorities, and (4) the woman believed the notification was likely to result in the infliction of bodily injury to her. Judge Alito's role was to decide whether Pennsylvania voters had violated the Constitution by enacting such a statute.


Cal Thomas

Cal Thomas is co-author (with Bob Beckel) of the book, "Common Ground: How to Stop the Partisan War That is Destroying America".
 
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