Politics are Key in Alito Nod

Adrienne Gaffney's op-ed "No Real Case Against Alito" presents the rather idealistic view that politics does not or should not play into the Senate confirmation process for the Supreme Court. Specifically, that Alito's views, including his unequivocal stance that abortion is not protected by the Constitution, should not bar him from confirmation. However, such sentiments belie the fact that the Senate does, and should, in my opinion, take the viewpoints of nominees into consideration in the confirmation process. Particularly when a nominee maintains extreme positions on the rights of criminal defendants, civil rights, voting rights, the extent of the Commerce Clause and, yes, abortion. Contrary to what was stated in Gaffney's piece, the Senate has, relatively recently, rejected a nominee to the Court precisely because of his viewpoint which was extremely conservative. In 1987, President Reagan nominated Robert Bork to the U.S. Supreme Court. Bork arguably was an even more qualified jurist and respected constitutional scholar than Alito. For example, his book The Antitrust Paradox is still widely considered to be one of the leading works written on antitrust law. Bork also believed and wrote that the First Amendment and other parts of the Bill of Rights should be narrowly construed.

Needless to say, Bork was and remains an enthusiastic supporter of overturning Roe v. Wade. Like Alito, Bork was being nominated to fill the seat of a retiring moderate justice and, also like Alito, his nomination had the potential to shift the balance of the Court. Bork, unlike Alito, who is now trying to hide his beliefs in hopes of getting confirmed, made no bones about his views (which I kind of respect, even though I thought he would be a disaster if confirmed). His confirmation hearings were among the most contentious seen in Washington. When Bork came up for a vote, the Senate, largely on a party line vote, rejected him. After this defeat, Reagan went back to the drawing board and appointed moderate Anthony Kennedy who, a few years later, would be the deciding vote in upholding the right to abortion.

The difference between now and then is that the Republicans control the Senate, though thankfully not by a filibuster-proof majority. Also, Alito is doing a masterful job of hiding his true colors so as to avoid the Democrats closing ranks to filibuster his nomination. In conversations with Democrats, he stated that he "respects" the precedent of Roe v. Wade, which is fine and dandy, except for the fact that his respecting that particular decision does not mean he would not vote to overturn it once on the Court. I sincerely hope that the Democrats, including those wavering members from so-called "red states" develop some backbone, stop this nomination, and send Bush a message that he should nominate a mainstream conservative onto the Court in the mold of O'Connor.

As for Bush's re-election as a popular mandate for him to nominate Alito, I think his re-election was more a product of people's fears about terrorism and the relative weakness of John Kerry as a candidate than anything else. Most moderate Republicans and independents I know told me that they voted for him for that reason while largely abhorring his social views. Indeed, the electoral mandate for Bush was less than overwhelming and his poll numbers currently do not reflect much popular support. When a majority of Americans favor keeping abortion legal, that is the guide Bush should follow in selecting a nominee. Of course, as with all other social issues, Bush feels compelled to kowtow to his most extreme supporters.

It is not wrong to take a nominee's views into consideration when deciding whether to confirm him, regardless of his credentials. After all, President Clinton chose two moderate jurists that would not generate the ire of conservatives even though he had a Democrat majority in the Senate at the time. He could have nominated an eminently qualified liberal such as Laurence Tribe, but concluded (sensibly) that the American people prefer moderates on the bench and thus chose two consensus nominees who were overwhelmingly confirmed.

In all likelihood, given the clever way Alito is being packaged and the spinelessness of the Democrats, it sadly appears that Alito will get his slot on the Court. Looking at the current composition of the Court, the right to the abortion (barely) will still remain the law of the land despite his nomination. The same may not be true for other cherished rights, but they won't likely be massively altered either.

However, the country will then only be one retirement or death away from an utter nightmare. It will be a disaster if Bush gets that chance to add a critical fifth vote to the Court to start turning the clock back 100 years in this country. Not just the right to an abortion, but the right to use contraception, freedom from unreasonable search and seizure, separation of church and state, the federal government's ability to provide for the most needy and helpless in society, will all be put in jeopardy when that day comes to pass. We'll be lucky if we recognize the Constitution in 10 years.

Remember, folks, it is a lifetime appointment.