MEDIA VOICES for Wednesday — November 02, 2005

• U.S. Supreme Court: The fight is on


U.S. Supreme Court: The fight is on

St. Louis Post-Dispatch, Nov. 1, 200

Any presidential nominee for the U.S. Supreme Court deserves full and fair consideration by the U.S. Senate with a presumption in favor of confirmation. That pre-sumption is bolstered when the nominee is an excellent jurist with a low-key temperament and long judicial experience, as is the case with President George W. Bush’s newest court nominee, Samuel Alito Jr.

But when the prospective justice has a record antagonistic to important constitutional rights and when those rights hang by a thread, the nomination deserves searching scrutiny. That is the case with Judge Alito.

In 15 years on the federal appeals court in Philadelphia, the 55-year-old judge has expressed a cramped view of congressional power, opposition to key abortion rights and skepticism toward claims of race and sex discrimination. Replacing the swing vote of Justice Sandra Day O’Connor with a judge more in the mold of Justice Antonin Scalia could jeopardize rights of privacy, religious freedom and equality.

Only in the most exceptional case should judicial ideology defeat a nominee for the court. But the circumstances surrounding Judge Alito’s nomination make ideology relevant. The GOP’s conservative base criticized White House counsel Harriet Miers because it couldn’t be sure she was reliably conservative. Mr. Bush, transparently trying to shift the nation’s attention away from the White House leak scandal, gave the right wing of his party the candidate and the fight they demanded.

The mantra of the Bush administration is that it wants a conservative justice who will interpret the law rather than make it. But some of Judge Alito’s decisions are activist ones that don’t fit easily in the mold of a restrained judge merely applying the law. In a 1991 case that led to the U.S. Supreme Court decision reaffirming Roe v. Wade, Judge Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before having an abortion. Justice O’Connor flatly rejected that view, writing that states can’t “give to a man the kind of dominion over his wife that parents exercise over their children. Women do not lose their constitutionally protected liberty when they marry.”

More recently, Judge Alito argued that Congress had so little power under the Commerce clause that it could not regulate machine guns. He also ruled that Congress could not protect state workers under the Family and Medical Leave Act. Justice O’Connor again was part of the majority that rejected that view in the family leave case. In a series of employment discrimination cases, Judge Alito consistently has been more receptive to employers’ arguments than to those made on behalf of women, minorities and older workers.

To be fair, this is only part of Judge Alito’s record. There also are decisions supporting the free speech rights of students in public schools and universities. Undoubtedly, a much fuller record of his decade of decisions will emerge in coming weeks.

We supported Chief Justice John G. Roberts Jr. despite reservations about his record in the Reagan Justice Department. And we called for Ms. Miers’ to get a chance to prove herself before the Senate Judiciary Committee. Judge Alito will get his opportunity. When the Senate votes, it should remember that the integrity of the Constitution and the rights and liberties it protects are more important than any individual’s prospects for confirmation.

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