Alito vs. Ginsburg

Published November 17, 2005

National Review Online

On the basis of a statement he wrote 20 years ago, the New York Times opined Wednesday that Judge Samuel Alito “has extreme views,” “does not respect precedent,” and “is an ideologue.” Let’s set aside the absurdity of the New York Times editorial page serving as a judge of what is mainstream and examine the evidence:

In that statement 20 years ago, Judge Alito set forth a classic set of American principles: “I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values. In the field of law, I disagree strenuously with the usurpation by the judiciary of decisionmaking authority that should be exercised by the branches of government responsible to the electorate.”

By contrast, 18 years before President Clinton nominated her to the Supreme Court, Ruth Bader Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. She proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day. She criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles. And (my favorite) she urged that prisons be co-ed rather than single sex. (See here for all the foregoing.) As a justice, she has been eager to supplant the democratic processes and to dictate for all Americans which interests are part of some New Age “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Twenty years ago, Alito expressed the view that there is not a constitutional right to abortion. From the day Roe v. Wade was decided in 1973 until the present, many liberal scholars and commentators who support abortion as a matter of policy have been intensely critical of Roe. The view that Alito expressed twenty years ago is squarely in this broad tradition.

In 1977, 16 years before Clinton nominated her to the Court, Ginsburg strongly criticized the Supreme Court’s ruling in Maher v. Roe that the Constitution does not require taxpayers to fund abortions. The view that Ginsburg expressed was and is an extreme minority position. As her vote in Lawrence v. Texas shows, Ginsburg does not hesitate to overrule precedent that she disagrees with.

Twenty years ago, Alito expressed his opposition to “racial and ethnic quotas” — an opposition that liberal Democrats today purport to share.

As a D.C. Circuit judge, Ginsburg opined that a manifest imbalance in the racial composition of an employer’s work force justified court-ordered quotas even in the absence of any intentional discrimination on the part of the employer. But, at the time of her nomination to the Court, despite having operated her own chambers for over a decade in a city that was majority-black, she had never had a single black person among her more than 50 hires.

Who better understands American values and ideals, and who would be more faithful to the proper role of a judge? Alito or Ginsburg? I’ll place a lot more confidence in the judgment of the American people on this question than in the visceral response of the New York Times.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.

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