Judging Judge Alito

November 01, 2005

In choosing Samuel A. Alito Jr. to serve on the U.S. Supreme Court, President Bush seems to have appeased those hard-line conservatives within his political base who vigorously protested Harriet Miers, the White House counsel and personal friend who withdrew her nomination for the same seat last week. But the new nomination is generating similar questions of qualifications, competence and ideology, only from the other side. Some Democrats are raising red flags - and even the possibility of a filibuster - because they wonder whether Judge Alito is so far to the right that he's not qualified to sit on the High Court. It's a critical question because Sandra Day O'Connor, whose seat he would fill, has been a moderate conservative and a pivotal swing vote. With the court's future hanging in the balance, getting to know Judge Alito is a top priority for the Senate and the nation over the next several weeks.

He certainly comes with an impressive rM-isumM-i: a former assistant U.S. attorney, assistant to the U.S. solicitor general, deputy assistant U.S. attorney general and U.S. attorney before serving for the last 15 years as a judge on the 3rd U.S. Circuit Court of Appeals, based in Philadelphia. That means he has a known judicial record and paper trail, which is being mined by supporters and detractors.

An early scan of his record shows some areas of concern, such as his willingness to allow a state to impose restrictions on abortion rights; his questioning of Congress' authority in areas such as requiring state employers to adhere to the Family and Medical Leave Act or controlling the transfer and ownership of machine guns at gun shows; and his narrow interpretations of civil rights laws that would make it harder for victims of race or gender discrimination to prove their cases. Some of these positions may be troubling to moderate Republicans.

President Bush and other conservatives seem to prize nominees to all federal courts who, they insist, will not legislate from the bench or be so-called activist judges. But judicial activism is in the eyes of the beholder. We would argue that interpreting the law to deny fundamental rights or to make it more difficult for certain underprivileged or underrepresented groups to exercise their rights is "activism" of the sort that diminishes, not enhances, the nation. And at some point, that sort of activism stretches the boundaries of what we would consider legal competence. As the Senate and the public become more exposed to Judge Alito's extensive record, we can examine what sort of man Mr. Bush has chosen to elevate to the Supreme Court and determine whether he is, in fact, an "activist" judge, and whether he deserves our support.

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