PrintMr. Justice Alito
For President Bush the third time's the charm. Judge Sam Alito of the United States Court of Appeals for the Third Circuit was a sight for sore conservative eyes when he stood beside the President for the announcement of his nomination to the Supreme Court. Many of us who were horrified at both the process that led to the Miers nomination and the outcome of that process were so relieved to see Alito that he almost seemed to glow with a supernatural light.
Quite apart from the circumstances of his introduction, conservatives are enthused about Judge Alito's nomination, and they should be. But our enthusiasm needs to be tempered by some realism about President Bush's new nominee.
Links to some of the opinions Judge Alito has authored are available at Confirmthem.com. It's worth the time to read through some of them if only to earn scoffing rights. In the coming weeks the press will make a pig's breakfast out of its effort to inform the public about Judge Alito's body of work. This will partly result from deliberate partisan distortion, but ignorance and incompetence will play an important part as well. For the price of an hour or two of light reading anyone can be much better informed than the high—priced correspondents.
Those who spend that hour or two will discover that Judge Alito is a careful judge who writes with unusual clarity but without much flair for the dramatic. All efforts to portray his work as frightening or radical are doomed to collapse in embarrassing failure. The attack dogs of the left won't find much in Judge Alito's record to sink their teeth into. But the right won't find all that much to celebrate either. Judge Alito is too cautious and conventional to have given much indication during his years on the bench that he is capable of being the sort of transformative justice that most conservatives believe the Court needs.
This doesn't mean that Alito is destined to be a disappointment. He is undeniably both talented and conservative. The record clearly shows that Judge Alito is adept at justifying the most conservative interpretation Supreme Court precedent will bear. We are going to hear a great deal about one particular case that illustrates this talent — Planned Parenthood v. Casey.
In Casey Alito dissented from a decision striking down a Pennsylvania statute which sought to regulate abortion by requiring spousal notification. He carefully analyzed the cases that developed Justice O'Connor's 'undue burden' test and explained why the Pennsylvania spousal notification provision passed that test. If Judge Alito ever noticed that the undue burden test is an incoherent excrescence growing on an idiotic and morally repugnant doctrine that has no connection to the United States Constitution, he gave no hint of it in his opinion.
For his entire judicial career Judge Alito has operated within the boundaries the Supreme Court has established. He has worked that field with great skill. But his fifteen years of doing so don't tell us much about how he will go about setting the boundaries now that he is about to get the chance.
Chimpanzees confined in cages will eventually become dependent on the confinement. Open doors won't tempt them. They will fight to avoid eviction. Some judges who are released from the obligation to follow the Supreme Court when they join it, are like chimps. They just can't accept the freedom that comes with the title 'Justice.' They can't give up the comforting constraints of doctrine, even erroneous doctrine. This is the story of Anthony Kennedy and, to some extent, David Souter. For all his talents and conservative inclinations there is no way to be certain that Judge Alito won't suffer from caged chimp syndrome.
Academic writings can tell us a lot about the author because one can speak for oneself between the covers of a law review. Judge Alito has no academic writings. We got some insight into John Roberts from the advice he gave President Reagan. We haven't seen anything similar from Judge Alito's government service and we aren't likely to. We can only read his opinions and they only tell us so much.
Judge Alito is a superb staff officer who has just been promoted to an independent command. We have ample reason to be hopeful but he remains untested in critical respects. His confirmation will be easier than anticipated. Democrats will bluff and bluster but in the end their resistance will be ineffectual. Before the end of 2006 we will know exactly how Judge Alito is going to deal with his new role.
Personally, I'm betting he'll do fine but I'm keeping my fingers crossed.
J. Peter Mulhern is a frequent contributor. He is a lawyer in the Washington, DC area.
