Thursday, November 03, 2005
Slate magazine's Dahlia Lithwick thinks she has President Bush, conservatives and Judge Alito all figured out. She offers weak reasons why Bush resorted to Alito after Miers withdrew and misrepresents what kind of justice Alito would be based on cases that came before him on a circuit court.
Only Lithwick could argue that the replacement of one nominee with questionable credentials necessary for the highest court in the land with a nominee who has been a federal judge for fifteen years is a "pander." The point is that president Bush probably pandered to his conservative base with a replacement for Justice O'Connor but that pander was actually Miers and not Alito. An argument could made that the Miers was a "pander" pick because the White House argued that Miers was picked because she was a woman and sent thinly veiled messages that Miers would choose to overturn Roe v. Wade. In an amazing twist that shocked Washington, conservatives rose up in anger because they didn't want to be pandered. Patronizing pander politics might work for the Democrats but conservatives who sincerely care about the future role of the Supreme Court wanted Bush to pick the best available candidate regardless of gender, color or religious affiliation. Alito's curriculum vitae marks him as an ideal candidate for the Supreme Court. His role as a prosecutor, experience in the Justice Department and wrangling with constitutional issues for the last fifteen years indicates that the man is fit for the supreme court, politics notwithstanding.
As for Alito's decisions as a judge, Lithwick plays a cute game distorting his opinions.
You'll hear a lot about some of Alito's other decisions in the coming days, including his vote to limit Congress' power to ban even machine-gun possession, and his ruling that broadened police search powers to include the right to strip-search a drug dealer's wife and 10-year-old daughter—although they were not mentioned in the search warrant. He upheld a Christmas display against an Establishment Clause challenge.
What you don't see in Lithwick's piece is the word, "constitutional." Lithwick does not inform her readers that Alito felt that, for example, Congress did not have the power under the constitution's commerce clause in order to regulate machine gun sales. Alito's personal feelings on isssues is another matter.
Finally, Lithwick assumes that Congress has unrestrained power to do whatever it wants.
Best of all for Bush's base, Alito is the kind of "restrained" jurist who isn't above striking down acts of Congress whenever they offend him.
Liberals have advanced the curious argument that their version of judicial activism occurs any time that a judge strikes down a law passed by Congress. That view of "activism" is laughable when one must remember that the constitution spells out what powers Congress has. Therefore, it is incumbent upon judges to interpret a law according to whether or not Congress was eplicitly allowed to pass such a law.
Update: For excellent analysis check out Eugene Volokh here and aqui.