Celebrating Alito

After the Harriet Miers debacle, President Bush's nomination of Samuel Alito for the Supreme Court feels like jumping out of a pressure cooker and into a swimming pool. And it's a swimming pool where a rough game of full-contact water polo is about to break out; liberal interest groups are gunning for him, and Democrats are already considering a filibuster. In his 15-year tenure on the 3rd Circuit U.S. Court of Appeals, Alito has distinguished himself as one of the most impressive jurists in the country. One need only look at his record to see just how little water the coming effort to portray Alito as a crusading right-wing extremist holds.

Alito wrote for the majority in a split 2-1 decision in ACLU v. Schundler, ruling that a City Hall decoration in Jersey City, New Jersey, passed constitutional muster. A theocratic effort to merge church and state? The display in question featured a nativity scene, a menorah, Santa Claus, Frosty the Snowman, a Christmas tree with Kwanzaa ornaments, and a sign proclaiming the city's commitment to diversity. In a parade of silly Establishment Clause lawsuits filed the ACLU, this one stands out for its silliness.

In Saxe v. State College Area School District, Alito wrote the opinion in a unanimous ruling that a state anti-harassment policy violated the First Amendment by extending to speech that was neither vulgar, nor school-sponsored, nor likely to disrupt school work. The plaintiffs were Christian students seeking the right to proclaim homosexuality sinful; perhaps Alito is a gay-hater? Anyone making that argument will have to contend with Shore Regional High School Board of Education v. P.S., in which Alito sided with a high school student who was so mercilessly bullied for his perceived homosexuality that he attempted suicide in eighth grade. Alito wrote for a unanimous three-judge panel, ruling that the school board, by rejecting the student's request to transfer to a high school away from his tormentors despite his qualification for special education due to emotional disturbance, shirked their responsibility under the Individuals with Disabilities Education Act to provide a "free appropriate public education."

In Fatin v. INS, Alito wrote the majority opinion siding with an Iranian woman seeking asylum, writing that she could credibly plead a well-founded fear of persecution if she found Iran's "gender specific laws and repressive social norms" abhorrent. In Williams v. Price, Alito wrote the opinion granting a writ of habeas corpus (that is, a right to make a case for unlawful imprisonment) to a black man convicted of murder because state courts refused to consider the testimony of a juror who heard other jurors make racist remarks. Given the parts of Alito's record in which he comes off almost as a bleeding-heart, it's almost obscene that People For the American Way calls Alito an "opponent of fundamental legal rights and protections for all Americans."

What PFAW and their ilk care about, of course is abortion. It's a good bet that Alito would vote to overturn Roe v. Wade, but even here, Alito's record is hardly that of a pro-life activist. He wrote a dissent in Planned Parenthood v. Casey, a spousal-notification case in which the Supreme Court ultimately laid out the reasoning for upholding Roe out of deference for precedent despite hints that a majority of Justices no longer would have supported Roe at the time. "The Pennsylvania legislature could have rationally believed," wrote Alito, "that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion."

But he voted in Planned Parenthood of Central New Jersey v. Farmer to overturn New Jersey's partial-birth abortion law, arguing in his concurrence that the lower court was bound by the Supreme Court's decision in Stenberg v. Carhart (though he did not endorse the reasoning of Stenberg). And he joined the majority in the 2-1 split decision of Elizabeth Blackwell Health Center v. Knoll, which struck down Pennsylvania's law requiring women who have been raped to report the crime when seeking state funding for abortion, on the basis that the law was invalidated by a Clinton administration policy that prohibited states from adding conditions to Medicaid abortion funding. Alito is a judge who rules based on his reading of the law, not based on his policy preferences.

For the interest groups of the judicial left (and the Democrats who are beholden to them), that's the problem. They want judges to bend the law to fit a political agenda, just as long it's theirs. Doesn't that seem a little extremist?

Eating Dirt

By The Prowler

Published 11/1/2005 12:09:45 AM

Kudos to the fellows at Red State and Townhall, who nailed DNC dirty tricksters for their sliming of SCOTUS nominee Samuel Alito.

Red State got hold of a Word document from the DNC oppo researchers, which included embedded data that showed who worked on it. Based on their research, a couple of low level flunkies pulled the dirt together, while one Devorah Adler did the polish. And who might she be? Clinton White House documents reveal that she was one of Bruce Reed's deputies on domestic policy back when the Democrats ran the White House. She served as Associate Director for Health Policy.

Now, Avery is plying her Clinton training for Howard Dean. As reported by AmSpecBlog on Monday, Democratic Senate Leader Harry Reid seemed to sense a tidal shift in public opinion and MSM coverage of the Alito nomination. Before noon, he spoke to DNC chairman Dean and asked that the rhetoric on Alito be cooled. Dean, according to DNC sources, declined the invitation to be civil toward an esteemed judge.

Now, comes the DNC dirt document, which attempts to slime Alito with charges that he was soft on organized crime and mean to immigrants. See a pattern here?

Panic may now be setting in among Democrats. Sen. Chuck Schumer appeared on CNN late Monday night, with a five o'clock shadow and somber attitude, saying that the Senate should not be rushed into a vote, never mind that Schumer's own staff have been vetting Alito for more than a week, ever since word began leaking out that the White House might be looking to make a change.

Beyond Schumer, both Sens. Ted Kennedy's and Joe Biden's staffs have full briefing books completed on Alito, and were poring through them on Monday afternoon.

One Democratic political consultant who was coming off Capitol Hill after meetings late Monday said there was a level of frustration among Senate Democratic staff that he had not seen with the Roberts nomination. "This is a guy [Alito] who has had 15 years on the bench. Our guys say his rulings are consistent, but for every one you think you have him nailed on ideology, you flip the page and, boom, he cuts back on you to the other side of the argument in a different case. [See John Tabin today.] And it's still solid stuff. This morning, I got the sense our guys were ready for a fight. Now 12 hours later I'm not so sure. They want the fight, they just don't have a lot of ammo."

Eating Dirt

In otherwords, they just had their sterotypes of Justices we prefer shattered. Instead of outcome base results, they've discovered a Justice endorsed by the right acros the spectrum that is process oriented. Someone that attempts to adhere to the will of the Constitution, rather than shape it to match personal ideology.

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