Wednesday, November 02, 2005
Editorial: A nomination that will divide
From the Journal Sentinel
Posted: Oct. 31, 2005
In picking Appeals Court Judge Samuel Alito for the U.S. Supreme Court on Monday, President Bush gave his right flank what it wanted: a true-blue conservative. The question now is: Is Bush giving the country what it needs?
The nomination is troubling in that 1) it's liable to divide America rather than unite it, 2) it lessens the extent to which the court mirrors the nation's rich diversity and 3) Alito has taken worrisome stands on many issues. Still, Alito deserves the benefit of the doubt until he gets his day in court - or rather before the Senate Judiciary Committee - to make the case for his confirmation.
Bush had chosen White House counsel Harriet Miers to succeed the retiring Justice Sandra Day O'Connor, but many conservatives vigorously objected, questioning whether Miers had the intellectual stamina to stay conservative. The nominee withdrew her name. Now, Bush has picked Alito, a judge who may be in the archconservative mold of Justices Antonin Scalia and Clarence Thomas.
Prior to Miers, Bush had named Appeals Court Judge John Roberts to succeed O'Connor but switched to have him succeed Chief Justice William Rehnquist, who died in September. A guiding principle for Bush in the two previous nominations seemed to have been candidates with thin paper trails - the less to trip them up at the hearings.
Bush discarded that principle in naming Alito, who boasts a thick portfolio of opinions he's authored, the result of sitting on the 3rd Circuit U.S. Court of Appeals in Philadelphia for 15 years. Bush said that Alito "has more prior judicial experience than any Supreme Court nominee in more than 70 years." That experience, the intelligence he displays and his firm grasp of constitutional law are pluses.
But, regrettably, Bush declined to consult with Senate Democratic leaders in making his choice. A big reason President Clinton had relatively smooth sailing on his high court nominees is that he did consult with GOP leaders beforehand.
Another minus is that the nomination lessens the court's diversity. O'Connor herself had expressed the desire that her successor be a woman. O'Connor seems to have grown wiser about diversity as a result of her Supreme Court experience. She came to see the virtues of having a court that looks like America - doubtless a big reason she softened her opposition to affirmative action in recent years.
In losing a woman, the court with Alito would feature seven white men, one white woman and a black man, who deserves an asterisk because he arguably does not represent the views of mainstream black America.
Finally, many of Alito's opinions, often dissents, are worrisome. He was the sole justice on a 3rd Circuit panel in 1991 to regard a Pennsylvania requirement that women notify thir husbands before getting an abortion as not an undue burden on access to the procedure. The Supreme Court specifically disagreed with his dissent in an opinion written by O'Connor.
In 1996, he was the sole dissenter when the 3rd Circuit upheld the authority of Congress to ban fully automatic machine guns. Also that year, he tried - in the end, futilely - to make it harder to bring discrimination complaints to trial.
These and many other issues deserve a thorough airing by the Judiciary Committee.
Charlie Sykes has found and documented the reaction all over the internet to this ridiculous editorial.
So, for future reference, when naming the members of the USSC, please use the following list: CJ John Roberts, Ruth Ginsburg, John Paul Stevens, David Souter,
Stephen Breyer, *, Antonin Scalia, Anthony Kennedy, (Samuel Alito).
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