TCS Daily

Sam Alito Will Play Reagan to Robert Bork's Goldwater

By Ilya Shapiro - November 1, 2005 12:00 AM

Like many Purple Americans, I set my clock radio to wake me with the soothing erudition of NPR. Thus on Monday I awoke in the midst of President Bush's announcement that he was nominating Samuel A. Alito, Jr. to the Supreme Court. In a half-daze, I listened to the President say that Judge Alito "has a deep understanding of the proper role of judges in our society," that he "understands that judges are to interpret the laws, not to impose their preferences or priorities on the people."

Oh boy, I thought, Ralph Neas (of the left-wing People for the American Way) ain't gonna love this one. And it's safe to say that David Frum (of National Review) won't be organizing petitions for this candidate's withdrawal.

Sure enough, after the laudatory introduction that made everyone forget about Harriet Miers -- wasn't she some Dallas Bar Association president or something? -- and Alito's gracious remarks, Nina Totenberg launched in with some pre-prepared apoplexy.

"This is a" -- wait for it -- "VERY conservative judge," she intoned, restraining herself for a sentence before invoking the too-clever-by-half epithet, "Scalito." (As if the reserved Alito shared anything with the avuncular Antonin Scalia besides an Italian heritage and Republican sympathies.)

Then Jonathan Turley of George Washington University Law School (where I also teach, so I suppose we're colleagues) explained that, with this selection, in contrast to Miers's, there was no need to signal to the "extreme" right with the "code language" about "not legislating from the bench." Never mind that this was precisely how the President described Judge Alito's jurisprudential ideals -- though probably not to mollify an interest group that is keenly aware of the hundreds of decisions written by the judges on the high court short list.

Then the more serious "analysis" began, and the conclusion of the gold-foiled cornucopia of legal authorities seemed to be that women would be forced into the kitchen (stopping only to doff their shoes and get pregnant) the moment a Justice Alito is sworn in. Then Senators Reid, Leahy, and Schumer began to weigh in, and even the proverbial man from Mars could tell that this confirmation battle would be just that.

Interesting: John Roberts virtually sailed through, with opposition only from the "Tell me how you see the Constitution as a man, a husband, a father" wing of the Democratic Party. Yet Sam Alito, also a white male Catholic Ivy League-educated judge, runs into a steamroller. And I thought it was the Republicans who were gunning for a fight, not the Democrats...

It is disingenuous for the Democrats to criticize President Bush for not picking a woman or minority when Priscilla Owen, Edith Jones, Janice Rogers Brown, or Emilio Garza would have prompted a far greater outcry than Alito. (Though it would be rich comeuppance to an administration that labeled attacks on Miers's qualifications as sexist.)

And it cannot be that a man with more judicial experience than any Supreme Court nominee in 70 years is unqualified. Or that we don't know enough about him because he sits on the Philadelphia-based Third Circuit, which faces far less media attention than the D.C., Second (New York), Fifth (New Orleans), or Ninth (San Francisco) Circuits.

It must be that Alito went to Princeton, so the Harvard-Yale old boys' network had to stop this October 31 nomination from the land of perpetual Halloween. [Full disclosure: My closet also bleeds orange-and-black year-round.]

In all seriousness, though, everyone knows what's going on: Alito has a strong track record of originalist jurisprudence that the living-constitutionalists (for lack of a better moniker) cannot countenance. Abortion -- and specifically Alito's dissent in Planned Parenthood v. Casey -- is but a hot-button layman-accessible proxy for a much larger argument.

Just as Justices Scalia and Breyer have toured the globe in the pretentiously named "Boston, Melbourne, Oxford Conversazione on Culture," the country is in the midst of the most public, most important debate about self-governance in several generations. Are we to be a government of laws, or of men? Should judges incorporate evolving societal standards (as they see them) into the law, or should they wait for the political process to achieve whatever result it is meant to achieve? No small beer, this.

And now the gauntlet has been thrown, with Judge Alito -- almost as much as Judge Michael Luttig would have been -- as the culmination of the post-Bork culture wars.

Robert Bork's professional destruction kindled a flame that grew to full fire with this nomination.

Sam Alito is set to play Reagan to Bork's Goldwater -- and I must thank my good friends at NPR for opening my eyes (quite literally) to that revelation.

Ilya Shapiro, who clerked for Judge E. Grady Jolly of the Fifth Circuit, is a Washington lawyer whose last "Dispatches from Purple America" column put a human face on the immigration debate.


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