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Judging Alito

Confirming Judge Samuel Alito for the U.S. Supreme Court has its risks, but there is no compelling reason not to.

Samuel Alito would not have been our choice to take Sandra Day O'Connor's seat on the U.S. Supreme Court. His record as a federal appeals court judge and his testimony at his Senate confirmation hearings raise concerns in several important areas. However, a president has a right to expect that his judicial nominees will be confirmed as long as they are qualified and not outside the mainstream on constitutional jurisprudence. By that standard, Alito deserves to be confirmed.

Alito is exceptionally qualified for the high court in judicial temperament, intellect, integrity and legal experience - the American Bar Association gave him its highest rating. And despite the efforts of some Democrats to portray him as a far-right ideologue or worse, the record suggests - and his colleagues on the 3rd U.S. Circuit Court of Appeals agree - that he is within the judicial mainstream. We dare say that on some issues, Alito may be closer to mainstream public opinion than many of the Democratic senators who oppose him - and would oppose almost any conservative nominee President Bush put forward.

That said, there is the risk that Alito could alter the delicate balance of power on the court in ways that would, in our view, be wrong. The Alito nomination is a tougher call than Bush's choice of John Roberts to replace the late William Rehnquist as chief justice. For one thing, Alito would be replacing Justice O'Connor, who has been the swing vote on the closely divided court in many controversial cases. Also, Roberts was somewhat more reassuring at his confirmation hearings about respecting the court's abortion precedents. He said he considered Roe vs. Wade, the landmark court decision legalizing abortion, to be "settled law." Alito resisted going that far, only telling senators that he believes Roe is an important precedent worthy of respect. In refusing to give his personal and constitutional views on abortion, Alito was doing what past nominees, including those appointed by Democratic presidents, have done. However, there was room for the 55-year-old nominee to have been a little more forthcoming without prejudging any abortion rights case that may wind up before the court. We are less concerned that Alito could move the court closer to overturning Roe than we are that he could tip the scale toward new restrictions that place an undue burden on women.

Abortion is not the only important issue where Alito's record is troubling. He said at his Senate hearings that no one, including the president, is above the law. Those were welcome words, but how will he apply that principle to President Bush's claim that he has the inherent authority in wartime to eavesdrop on U.S. citizens and detain them indefinitely and without due process if they are swept up in the war on terrorism? It's hard to know, but any fair reading of his record suggests he would be more deferential to executive authority than O'Connor was. Alito's record also shows he tends to side with police, prosecutors and corporations, although that does not necessarily mean he reached the wrong legal conclusions.

History, of course, shows that predicting how a Supreme Court nominee will interpret the Constitution is often beyond the powers of pundits and politicians. Some of the court's most liberal justices were nominated by Republican presidents who came to regret their picks. What we know about Alito is that he is a conservative jurist who will pull the court to the right in some areas of the law, though just how far no one can know for sure.

More reassuring than anything we heard from Alito during his confirmation hearings is what his colleagues on the 3rd Circuit and his former Yale Law School classmates - including some liberal Democrats - have had to say about him. They say the Samuel Alito they know is not an ideologue with a political agenda, as liberal interest groups and Democratic senators claim, but a thoughtful conservative of unimpeachable integrity and character. Alito, they predict, will bring a more open mind to the court than Democrats have brought to his confirmation process.

The confirmation of Alito is not without risk, but we haven't yet heard a compelling case for denying him the job.

[Last modified January 18, 2006, 01:10:21]