Ahhh, that’s better.
After the Harriet Miers debacle, President Bush’s nomination of Samuel Alito for the Supreme Court feels like jumping out of a pressure cooker and into a swimming pool. And it’s a swimming pool where a rough game of full-contact water polo is about to break out; liberal interest groups are gunning for him, and Democrats are already considering a filibuster. In his 15-year tenure on the 3rd Circuit U.S. Court of Appeals, Alito has distinguished himself as one of the most impressive jurists in the country. One need only look at his record to see just how little water the coming effort to portray Alito as a crusading right-wing extremist holds.
Alito wrote for the majority in a split 2-1 decision in ACLU v. Schundler, ruling that a City Hall decoration in Jersey City, New Jersey, passed constitutional muster. A theocratic effort to merge church and state? The display in question featured a nativity scene, a menorah, Santa Claus, Frosty the Snowman, a Christmas tree with Kwanzaa ornaments, and a sign proclaiming the city’s commitment to diversity. In a parade of silly Establishment Clause lawsuits filed the ACLU, this one stands out for its silliness.
In Saxe v. State College Area School District, Alito wrote the opinion in a unanimous ruling that a state anti-harassment policy violated the First Amendment by extending to speech that was neither vulgar, nor school-sponsored, nor likely to disrupt school work. The plaintiffs were Christian students seeking the right to proclaim homosexuality sinful; perhaps Alito is a gay-hater? Anyone making that argument will have to contend with Shore Regional High School Board of Education v. P.S., in which Alito sided with a high school student who was so mercilessly bullied for his perceived homosexuality that he attempted suicide in eighth grade. Alito wrote for a unanimous three-judge panel, ruling that the school board, by rejecting the student’s request to transfer to a high school away from his tormentors despite his qualification for special education due to emotional disturbance, shirked their responsibility under the Individuals with Disabilities Education Act to provide a “free appropriate public education.”
In Fatin v. INS, Alito wrote the majority opinion siding with an Iranian woman seeking asylum, writing that she could credibly plead a well-founded fear of persecution if she found Iran’s “gender specific laws and repressive social norms” abhorrent. In Williams v. Price, Alito wrote the opinion granting a writ of habeas corpus (that is, a right to make a case for unlawful imprisonment) to a black man convicted of murder because state courts refused to consider the testimony of a juror who heard other jurors make racist remarks. Given the parts of Alito’s record in which he comes off almost as a bleeding-heart, it’s almost obscene that People For the American Way calls Alito an “opponent of fundamental legal rights and protections for all Americans.”
What PFAW and their ilk care about, of course, is abortion. It’s a good bet that Alito would vote to overturn Roe v. Wade, but even here, Alito’s record is hardly that of a pro-life activist. He wrote a dissent in Planned Parenthood v. Casey, a spousal-notification case in which the Supreme Court ultimately laid out the reasoning for upholding Roe out of deference for precedent despite hints that a majority of Justices no longer would have supported Roe at the time. “The Pennsylvania legislature could have rationally believed,” wrote Alito, “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.”
But he voted in Planned Parenthood of Central New Jersey v. Farmer to overturn New Jersey’s partial-birth abortion law, arguing in his concurrence that the lower court was bound by the Supreme Court’s decision in Stenberg v. Carhart (though he did not endorse the reasoning of Stenberg). And he joined the majority in the 2-1 split decision of Elizabeth Blackwell Health Center v. Knoll, which struck down Pennsylvania’s law requiring women who have been raped to report the crime when seeking state funding for abortion, on the basis that the law was invalidated by a Clinton administration policy that prohibited states from adding conditions to Medicaid abortion funding. Alito is a judge who rules based on his reading of the law, not based on his policy preferences.
For the interest groups of the judicial left (and the Democrats who are beholden to them), that’s the problem. They want judges to bend the law to fit a political agenda, just as long it’s theirs. Doesn’t that seem a little extremist?