Joseph Sobran’s
Washington Watch

Alito’s Threat

(Reprinted from the issue of November 10, 2005)

President Bush’s nomination of Samuel Alito to the Supreme Court raises the terrifying specter of a Court majority that would take the U.S. Constitution seriously. Most frightening of all, that majority might rule that killing unborn babies isn’t protected by the Constitution.

The baby-killing faction of the Democratic Party — which carefully avoids using the terms “baby” and “killing” when discussing abortion — reacted with panic. Ted Kennedy, the original borker, didn’t repeat his notorious 1987 slander of the original Bork, but he warned that Alito could move the Court “dangerously to the right.”

New York’s Sen. Charles Schumer complained that Alito “does not appear to be a Sandra Day O’Connor,” a lightly coded way of saying he can’t be counted to vote for feticide when the chips are down. (Schumer also made a bid for the Teddy Prize for Shameless Demagogy by suggesting that Alito would undo everything Rosa Parks had stood for.)

Vermont’s Patrick Leahy sighed that Bush, instead of “uniting the country,” had made a “needlessly provocative nomination.”

But all in all, the Democrats’ initial response, though negative, was modulated. Colorado’s Sen. Ken Salazar could manage nothing more apocalyptic than that it was “disappointing” that Bush hadn’t chosen a woman; Louisiana’s Mary Landrieu said Alito’s judicial record “raises questions.”

They don’t like Alito, but how are they going to oppose him without admitting the obvious — that the ugly cause of abortion is their one and only litmus test? They realize that things have changed since 1987, when they controlled the Senate, enjoyed a media monopoly, and faced a Republican president, Ronald Reagan, who wasn’t prepared to fight. The Harriet Miers fiasco has taught President Bush that his conservative base rejects the “stealth” approach to changing the judiciary and is ready, willing, and eager for battle.

Even so, the White House strategists must have winced when Alito’s 90-year-old mother, an unabashed Catholic, piped up to the press, “Of course he’s against abortion.” God bless that woman. No stealth for her!

Alito’s voting record has generally favored results conservatives like. But what matters more is that his opinions, as quoted in the press, have been closely reasoned in legal and constitutional terms, earning him the respect of lawyers and judges, even honest liberals, who know his work.

Even his Princeton teachers and classmates remember him fondly as extremely bright and thoughtful — generally conservative, but often for surprising reasons. Even in his opinions favoring limits on legal abortion rights, Alito has chosen his ground with care, citing, for example, O’Connor’s rationales in her pro-abortion votes.

Alito won’t be an easy target for the Democrats, especially considering his unanimous confirmation to his present post by the Senate in 1990 (he’d been nominated by the first President Bush), when the Democrats had a majority. It would be awkward to argue that he’s become unqualified since then, or that he was fit for the Third Circuit but not for the Supreme Court.

Oh, well. I’m sure the Democrats will think of something. They’re never at a loss for a party line.
 
Bush’s “Missed Opportunity”

Almost comical, in the circumstances, was the forlorn editorial bleat of The New York Times, which lamented Alito’s “apparent hostility to abortion” — so unlike O’Connor’s “moderation”! — and his disposition “to undermine the federal government’s authority to address momentous national problems.” He has been even “more radical on states’ powers than Justice Rehnquist”!

Alito’s nomination, the editorial said, was a “lost opportunity” for the Bush administration, which missed its chance to adopt “fresh ideas” after the indictment of Scooter Libby and all that: “Mr. Bush does not want to change, and is perhaps incapable of changing.” By choosing a nominee who may become “the seventh white man on the Court” — at least Miss Miers was a woman! — Bush, instead of displaying “his commitment to inclusiveness,” showed the same obtuseness that made him fail to see September 11 “as an opportunity to build a new, inclusive world order of civilized nations aligned against terrorism.” This nomination sends “a message about the presidency [that] could not be more disheartening.”

I’m not quite sure I follow this reasoning, but I gather Bush has broken a lot of hearts at the Times. Notice that Alito’s confirmation would give the Court its first Catholic majority, with two Italians at that, along with two Protestants and two Jews; but I guess that’s not what the Times means by “inclusiveness”; nine Souters would probably be more like it.

(A sidebar in the paper the same day was headlined “Alito Could Be Fifth Catholic On Current Supreme Court.”)

Above all, notice that the editorial opposes Alito because it dislikes the results of his rulings, not because of any flaws in his reasoning. This exemplifies liberalism’s implied contempt for the rule of law, for careful interpretation of the Constitution. “Legislating from the bench” is exactly what it wants, so it craves justices more like O’Connor, “mainstream” and “moderate” types who won’t rock the leaky boat of conventional liberal jurisprudence.

Liberals love the idea that the Constitution is a “living document,” as long as it doesn’t give them any unpleasant surprises.
 
Just in Time

Politically, picking Alito was a brilliant move for Bush just when he really, really needed one. Conservatives, almost overjoyed, instantly forgot that they’d been disgusted with the president only a week earlier, when he had also been swamped with other problems, Libby’s indictment being just one of them.

Alito’s selection knocked the Libby-Cheney-Rove scandals clean off the front page of the Times. Not a minute too soon for me, I must say, these being the least delicious Washington scandals since I left New Jersey for the Beltway many moons ago.

The only interesting tidbit I’ve picked up is that one of Libby’s legal clients was Marc Rich, the most famous recipient of the last-minute Clinton pardons; which probably makes it unlikely that Bush will risk inviting comparisons by giving a presidential pardon to Libby.

I can’t untangle all the legal questions being so hotly debated here, but I can’t help noticing a suspiciously neat division of opinion among the pundits: Those who support the Iraq war insist that Bush’s men are innocent of any wrongdoing, while those who oppose the war seem equally sure they must all be guilty.

Can it really be so simple, either way? What does the factual question of whether Libby perjured himself before a grand jury have to do with whether he wanted war with Iraq? Partisans tend to forget the very concept of independent variables.


SOBRAN’S reminisces about the most amazing mind I’ve ever encountered. If you have not seen my monthly newsletter yet, give my office a call at 800-513-5053 and request a free sample, or better yet, subscribe for two years for just $85. New subscribers get two gifts with their subscription. More details can be found at the Subscription page of my website.

Already a subscriber? Consider a gift subscription for a priest, friend, or relative.

Joseph Sobran