Judge Alito: President Bush's triumph

Posted: Nov 02, 2005 12:05 AM

All it took was one brilliant stroke for President Bush to win back his base, shift the news focus and restore hope to his beleaguered presidency. That stroke was Judge Samuel Alito of the Third Circuit Court of Appeals, whom President Bush nominated to fill Justice Sandra Day O'Connor's seat on the Supreme Court.

 Alito is the judge true constitutionalists have been waiting for. He is no enigma. He reads the Constitution as it was meant when it was written, and he is not afraid to challenge precedent. Alito realizes that deference to the Constitution and, absent a relevant provision of the Constitution, deference to legislatures both outweigh deference to past Supreme Court decisions. Alito is the judge we were promised by President Bush in his last presidential campaign; he is truly in the mold of Clarence Thomas and Antonin Scalia.

 His credentials are impeccable: the Ivy League education (Princeton University and Yale Law School), the governmental experience (assistant to the solicitor general, deputy assistant attorney general), the time on the bench (15 years on the Third Circuit). And he's only 55.

 More importantly, however, is Alito's judicial philosophy. Alito isn't some strange, enigmatic personality (see Souter, David) who can pump up his reputation with jurisprudential conservatives by spouting originalist talking points. Alito's background shows his dedication to originalist ideals. He was the lone dissenting voice on the Third Circuit in Planned Parenthood v. Casey (1991), the case concerning a Pennsylvania state requirement that husbands be notified before wives received abortions. Alito, still an appellate court judge bound by Supreme Court precedent, criticized the majority opinion's conclusion that spousal notification created an "undue burden" on pregnant women seeking an abortion. Wrote Alito: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion."

 Meanwhile, Alito's record on the "free exercise" and "establishment" clauses of the First Amendment is stellar. He has ruled repeatedly that state action specifically targeting religious practice must be struck down. In one case, for example, Judge Alito ruled that a police department policy prohibiting beards worn for religious reasons but allowing beards worn for health reasons violated the "free exercise" rights of Muslim police officers. Alito has also ruled that religious viewpoints may not be discriminated against on "establishment of religion" grounds. In C.H. v. Oliva (2000), a case considering whether a public school teacher could single out one child's religious Thanksgiving poster for exclusion from the walls of the classroom, Alito dissented, stating that the child's First Amendment free speech rights were violated when viewpoint discrimination based on religion occurred.

 But even beyond his imposing judicial record, it's Alito's general attitude toward the role of the law that endears him to true constitutionalists. In a 1986 University of Pittsburgh Law Review piece, Alito railed against an 1886 decision of the Supreme Court, stating that the "manifest[ly] flaw[ed]" decision had probably been upheld simply because of the "brute force of stare decisis," combined with the determination of Justice Brandeis and others to push for "the concept of a constitutionally protected zone of privacy." This is the language of one who respects the Constitution more than judges. Never would Justice O'Connor describe precedent as the "brute force of stare decisis." She would be more likely to praise precedent in flowing, grandiose terms, since in her view, it is judges, not legislatures, who provide stability and functionality.

 No such judge-worship for Judge Alito. In the same law review piece, Alito states that on a particular issue, "The Supreme Court's past and future difficulties are the wages of insisting that the Constitution answer a question that should be entrusted to the mundane processes of democratic government." The tongue-in-cheek manner reveals a deeper truth about Alito's perspective: Alito realizes that the Supreme Court's attempt to impose its own values under the guise of a Constitution that does not address certain questions actually usurps power from the people.

 And so President Bush is triumphant once again. Alito will be confirmed, barring a travesty the likes of which would make Robert Bork's rejection pale in comparison. The Supreme Court will turn away from self-worship, back toward the Constitution. And the American people will be the beneficiaries.