In the Alito confirmation, it all comes down to ideology

Ross Mackenzie
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Posted: Jan 12, 2006 9:05 AM

At this writing - on Day Three of the hearings into President Bush's nomination of Samuel Alito to take Sandra O'Connor's seat on the Supreme Court - the predicted Armageddon has so far failed to live up to its advance billing.

Maybe it will come, but not yet.

The predictions went like this:

William Rehnquist was a conservative, so the conservatism of John Roberts would not change the left-right balance on the Court. Because Justice O'Connor has matured into a swing voter, the obvious conservatism of Judge Alito would move the Court rightward. His confirmation would mean the left's loss of the third branch of government. So his nomination is a justifiable reason for the legions of the left to mount the battlements and pour their boiling oil.

Instead, at this point, they've used only warm water.

These may be some reasons.

Roberts hardly had a record. For the K Street minions of judicial activism to comb in search of every possible deviation from the mandated leftist norm, Harriet Miers boasted no record at all. In her place President Bush sent up a nominee who has voted in 4,800 cases and written 361 opinions.

That record shows a man thoroughly credentialed, with just the right temperament and judicial philosophy; a man of estimable character. His wife has thrown in these tidbits: Her husband Sam is the family's holiday cook; one summer he taught himself Greek, another summer juggling; and she hears he's pretty good with a 12-gauge shooting clays.

Not a whole lot of opposition the left can manufacture out of all that. So the assault has had to launch along the most undesirable route - on his abiding conservative beliefs. Unable to win a case against Judge Alito on his merits, leftist senators et al. have gone after his views on social policy, his Justice Department work during the dread Reagan administration, and his membership in the Federalist Society - a group consisting primarily of lawyers and legal scholars committed to judicial restraint, and superceding in energy and prestige the ideologically enervated ABA.

Sen. Patrick Leahy acknowledges, "This (battle) is not over competence. (Judge Alito) certainly is competent. This is (over) the whole issue of ideology" - i.e., a conservatism that offends leftists everywhere. Howard Dean terms Judge Alito a liar. Sen. Charles Schumer charges: "In case after case, you give the impression of applying careful legal reasoning, but too many times you happen to reach the most conservative result."

Teddy Kennedy draws from the Alito record these disqualifying emanations: Alito's 1964 support for Barry Goldwater; a sense that "average Americans have had a hard time getting a fair shake in his courtroom"; and in the year of his graduation (1972) membership in a group formed by alumni opposing certain trends at Princeton.

Perhaps these trends are personified in Princeton emeritus professor Walter Murphy, young Alito's senior-thesis adviser: "I confess surprise that a man so dreadfully intellectually and morally challenged as George Bush would want a person as intellectually gifted, independent and morally principled as Sam Alito on the bench." (This is the same challenged Bush who describes Judge Alito as "scholarly, fair-minded, and principled . . . with more prior judicial experience than any Supreme Court nominee in more than 70 years.")

While Judge Alito twisted out there for several months, his severest critics could concoct only that meringue.

No wonder the polled public supports his confirmation - at 53 percent, a number higher than the approval ratings of the President who nominated him. These factors also may be in play: (1) The Democrats know 55 Republican Senators can go to the nuclear option and end a filibuster if they choose, and confirm Judge Alito with a mere 51 votes.

(2) In the public mind, the extreme Democratic left may have reached the end of the tether. Maybe the public at last has grown so exasperated with the rhetorical antics of the left that it no longer cares - and so no longer pays any attention to Howard Dean screaming that Sam Alito lies, or to the hero of Chappaquiddick caterwauling about Sam Alito's credibility and character.

In the 1990s, the Judiciary Committee voted 18-0 to confirm Ruth Ginsburg and Stephen Breyer - among the court's most liberal members; the Senate went on to confirm Ginsburg 96-3 and Breyer 87-9. A man of erudition and modesty, Alito believes devoutly in judicial restraint and the rule of law. Though manifestly a conservative, he merits from an effete liberalism support at least equal, in terms of confirmation votes, to that given Breyer and Mrs. Ginsburg a dozen years ago.