A hot topic on blogs this morning is yesterday’s editorial on Judge Alito in the New York Times.
“Judicial nominations are not always motivated by ideology, but the nomination of Judge Samuel Alito certainly was,” the Times stated.
Making Alito sound like a cross between Darth Vader and the witch in Narnia, the editorial added:
“[Alito] may be able to use [the hearings] to reassure the Senate that he will be respectful of rights that Americans cherish, but he has a lengthy and often troubling record he will have to explain away. As a government lawyer, he worked to overturn Roe v. Wade. He has disturbing beliefs on presidential power – a critical issue for the country right now. He has worked to sharply curtail Congress’s power to pass laws and protect Americans. He may not even believe in ‘one person one vote.'”
Yikes! You mean he wants to take away our right to vote? Well, National Review’s Rich Lowry had already addressed this vicious line of demagoguery last week, even before the Times editorialists adopted it directly from anti-Alito activists:
“That makes it sound like he opposes the right to vote. Instead, the provenance of the charge is Alito’s long-ago opposition to two reapportionment decisions by the Warren court. They struck down state legislative districts that weren’t drawn equally according to population, thus disproportionately empowering rural areas. Critics of these decisions argued that if the Constitution’s framers meant to mandate that elected officials represent equal numbers of people, they never would have created the U.S. Senate.”
Another scary charge from the New York Times: Alito believes in an imperial presidency. As the Times puts it:
“Judge Alito has some disturbing views about handing the president even more power. He has argued that courts interpreting statutes should consider the president’s intent when he signed the law to be just as important as Congress’s intent in writing and passing the law. It is a radical suggestion that indicates he has an imperial view of presidential power.”
Professor Bainbridge, who deconstructs the editorial blow-by-blow, pointed out that this charge fails to consider some important interpretations of the memo being critiqued. Bainbridge quotes Charles Fried, former solicitor general and now a Harvard law professor, who has written about the Alito nomination:
“Judge Alito recommended that the solicitor general not take this case to the Supreme Court because he thought it was a sure loser. It is hardly surprising that Judge Alito, like many lawyers delivering bad news to a client, expressed sympathy for the client’s position. But the bottom line was just what Judge Alito’s higher-ups did not want to hear. And here, too, the solicitor general did not take Judge Alito’s advice – which once again, in the end, proved right.”
New York Times: “If President Bush had chosen a pragmatic, mainstream conservative like Justice O’Connor to fill the seat, these confirmation hearings would be a breeze. But now, the Senate has a duty to delve into the many areas in which Judge Alito’s record suggests he is an extremist, including…”
Keith Burgess Jackson: “Why should President Bush take the ‘breezy’ or easy way out? He’s been elected twice. He should do what he thinks right, not what will generate the least resistance. He should appoint judges who share his constitutional philosophy. Did Bill Clinton choose ‘pragmatic, mainstream liberals’? Did the Times criticize him because he didn’t?”