Ethics & Public Policy Center

The Right Justice

Published in National Review, Volume 57, Number 22 on December 5, 2005



Supporters of President Bush’s nomination of Judge Samuel A. Alito Jr. to the Supreme Court shouldn’t get complacent, but the fundamentals are all in place for Alito to be easily confirmed by the Senate on January 20.

For starters, Alito is a spectacularly well-qualified nominee — among the best-qualified ever. In the Reagan administration, he briefed and argued cases before the Supreme Court and then served as a deputy in the Office of Legal Counsel — the office in the Justice Department, previously headed by Rehnquist and Scalia, that advises the White House on difficult questions involving the Constitution and other federal law. His years as a federal prosecutor, first as a young lawyer and later as a U.S. attorney, give him an invaluable real-world understanding of criminal-law enforcement. And he has been a federal appellate judge for 15 years. In all these capacities, Alito has shined.

Despite Alito’s 700-plus opinions, the Left has found no real ammunition to use against him. Consider its feeble charges on the hot-button issues of abortion, civil rights, and federalism.

On abortion, Alito’s critics have focused attention on his 1991 dissenting vote to uphold a spousal-notice provision that had been approved by overwhelming majorities of both Democrats and Republicans in the Pennsylvania legislature and was strongly supported by Democratic governor Bob Casey. What pro-abortion activists try to depict as a draconian provision was in fact mild. The law required as a general rule that a married woman seeking an abortion inform the abortionist that she had notified her husband that she was about to have an abortion. But she was not required to do so if she instead stated that a) her husband was not the father of the child, b) her husband could not be located, c) the pregnancy resulted from spousal sexual assault that had been reported, or d) she had reason to believe that furnishing notice would likely result in bodily injury to her. Notice was also not required in the event of a medical emergency. Further, as Alito observed in an aside, it was “glaringly apparent” that this provision would be “difficult to enforce and easy to evade.”

Alito and the panel majority agreed that the spousal-notice provision was to be tested against the “undue burden” analysis that Justice O’Connor had set forth in her opinions as of that time, and Alito carefully explained why O’Connor’s own analysis supported his judgment that the provision passed her test. It is true, of course, that in Casey, the subsequent Supreme Court ruling, O’Connor — famous for her inconsistency — was part of the five-justice majority that ruled that the spousal-notice provision did constitute an “undue burden” — under a new version of that label masquerading as a standard. The Casey majority also waxed silly about the “troubling degree of authority” and “dominion” that this toothless provision supposedly gave a husband over his wife.

The American people, understanding better than the Casey majority what marriage is, overwhelmingly support spousal-notice provisions. Senate Democrats will highlight their own extremism on abortion if they attack Alito on this issue.

Notwithstanding the recent disclosure of Alito’s 1985 statement criticizing Roe, Alito’s defenders can show that he has neutrally applied the law in cases involving abortion. After the Supreme Court’s ruling in Stenberg v. Carhart voided Nebraska’s partial-birth abortion statute, Alito concluded that Stenberg required the invalidation of New Jersey’s virtually identical ban. And, in a case involving Medicaid funding of abortions, Alito adopted a position on a question of administrative law — the applicable standard of review — that led him to defer (just as Scalia would have) to a Clinton HHS directive that overrode a state limitation.

On civil rights, the lead gender-discrimination case (Sheridan) that the Left is using against Alito had Alito narrowly dissenting from a ten-member majority on a technical question concerning the mechanics of summary judgment in employment-discrimination cases. But four years later, a unanimous Supreme Court, in an opinion by Justice O’Connor, embraced Alito’s position.

The race case that the Left is trumpeting (Bray) also involves a fine point of summary-judgment procedure. What divides Alito from the majority is Alito’s sound understanding that claims of discrimination require, of all things, evidence of discrimination. It’s not enough to show that an employer hasn’t complied with its own internal procedures.

On federal-state relations, the Left’s favorite talking point is Alito’s ruling (in Chittister) on the Family and Medical Leave Act (FMLA) of 1993. In a straightforward application of precedent, Alito concluded that Congress did not validly override the states’ Eleventh Amendment immunity when it purported to require states to provide twelve weeks of leave to state employees in poor health. Two Democratic appointees (including the most liberal member of the Third Circuit) joined Alito’s ruling, and courts throughout the country, with the support of many Democratic appointees, have reached the same conclusion. And, contrary to the Left’s claim, the Supreme Court did not overrule Alito when it later held that a different subpart of the FMLA could apply against the states.

Alito’s dissenting opinion (in Rybar) that a broad federal ban on the possession of a machine gun is beyond Congress’s Commerce Clause power also provides his critics with only blanks as ammunition. Alito’s position faithfully applied the Supreme Court’s fresh ruling in Lopez, which held that Congress exceeded its power under the Commerce Clause when it criminalized the possession of guns near schools. And, belying the nasty epithet “Machine Gun Sammy,” Alito pointed out that all the states in the Third Circuit already had bans in place, and he spelled out ways that Congress could enact a federal ban.

The Senate confirmation process should proceed smoothly. Sen. Arlen Specter, chairman of the Judiciary Committee, has signaled clearly from the outset that he is favorably disposed toward Alito. To Specter’s credit, he has recognized that Alito’s intellect and other manifest qualifications outweigh the significant differences he and Alito have on judicial philosophy. With Specter’s support, Alito would be virtually guaranteed a favorable vote in committee. And Specter’s support would also make it more difficult for other Senate Republicans to jump ship.

Which brings us to the Gang of 14, the seven Republicans and seven Democrats who joined together last May to preserve use of the filibuster against judicial nominees in “extraordinary circumstances.” Absent a dramatic turn of events, there appears no prospect that these 14 senators would agree that Alito’s nomination presents “extraordinary circumstances,” nor have any other Democrats shown any appetite for a filibuster.

In all likelihood, Alito will be an effective witness at his hearing. Like Chief Justice Roberts, he is an experienced Supreme Court advocate who will not be intimidated by the high-profile setting and who will maintain a confident and respectful demeanor. Alito’s long judicial record gives him one advantage over Roberts, as it provides a body of material that he can discuss and explain.

Many conservatives were understandably disappointed that the Judiciary Committee did not schedule Alito’s confirmation hearing for early December, with a final floor vote before Christmas. But the schedule that has been adopted — the hearing is set to begin January 9, with the Senate floor vote on January 20 — should work well. The long period before the hearing deprives Democrats of a seemingly neutral reason (not enough time!) to oppose Alito. It has already put an end to the frenzy of daily articles uncritically reciting the Left’s latest smears. And Alito’s opponents are unlikely to generate a lot of public controversy over his nomination in the intervening weeks: Americans won’t be eager to hear attack ads while they are celebrating Thanksgiving and Christmas. So Democratic senators are likely to return to Washington in January regarding Alito’s confirmation as a virtual fait accompli.

Confirmation in January rather than December will keep O’Connor on the bench longer, but should not affect the Supreme Court’s decisions. The Court’s settled practice is that a justice who has heard oral arguments in a case will not take part in the final disposition of that case unless he is on the Court at the time of the final disposition. If there are any hotly contested cases in which O’Connor is the deciding vote, it is highly unlikely that opinions in those cases would be ready to issue before the spring of 2006. So, absent some shenanigans, those cases will be set for re-argument after Alito joins the Court.

The one wild card in this overall assessment is the National Archives’ release, in the coming weeks, of any records it has from Alito’s executive-branch service. But Alito, unlike Roberts, did not work in the White House, and at the Department of Justice his jobs were more purely legal (as opposed to having to do with legal policy) than Roberts’s position as an adviser to the attorney general was. It therefore is unlikely that the archives’ records on Alito will have anywhere near the scope, volume, or interest that Roberts’s records had. Nonetheless, reporters will be eager to gin up stories based on any documents that become available.

Lots of work remains to be done, and no one should underestimate how nasty the Left will get — or how many Democrats will end up voting against Alito. But those of us who fully expect Alito to be an outstanding justice should be heartened by the fact that this is a battle we are well positioned to win.

Mr. Whelan is president of the Ethics and Public Policy Center and is a regular contributor to Bench Memos, National Review Online’s blog about judicial nominations.

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