December
6, 2005
Conservatives Dodging Debate on Alito
By E.
J. Dionne Jr.
WASHINGTON -- When
conservatives revolted against President Bush's nomination of
Harriet Miers to the Supreme Court, they proudly proclaimed their
desire for a big debate over constitutional principles. Now they
are running from the fight.
No, they are not
giving up on Samuel ``I am and always have been a conservative''
Alito. They just want to act as if their ardent support for Alito
has nothing to do with his ideas or how he might rule. Whatever
Alito said in the past that proves conservatives are right in
seeing him as a comrade in arms is supposed to be irrelevant to
the Senate's debate over his confirmation.
Last week,
a 1985 memo emerged in which Alito, then a Reagan administration
lawyer, outlined a strategy to ``advance the goals of bringing
about the eventual overruling of Roe v. Wade and, in
the meantime, of mitigating its effects.''
Alito seems,
really and truly, to believe that Roe was a mistake.
In his now famous letter seeking a promotion during the Reagan
years, Alito said that he was proud of his work in the administration
advancing arguments ``that the Constitution does not protect a
right to an abortion.''
Believing
that Roe was wrongly decided is a perfectly respectable
position. Many, perhaps most, conservatives hold this view. So
do some liberal supporters of abortion rights.
Justice
Ruth Bader Ginsburg has said that the court overreached in Roe.
In his indispensable new book, ``Radicals in Robes: Why Extreme
Right-Wing Courts are Wrong for America,'' University of Chicago
law professor Cass Sunstein -- obviously no conservative -- sees
Roe as having ``shaky constitutional foundations.''
While Sunstein
questions the wisdom of overturning Roe now, he understands
why it enraged so many conservatives. ``With its ambitious ruling,
not at all firmly rooted in precedent,'' Sunstein writes, ``the
court allowed pro-life citizens to think that they had been treated
with contempt -- as if their own moral commitments could be simply
brushed aside by federal judges.''
You would
think that Alito and his supporters would welcome a principled
discussion of Roe. In fact, they want to change the subject.
When Sen. Dianne Feinstein, D-Calif., asked Alito about that letter
seeking a promotion, she said he told her: ``First of all, it
was different then. ... I was an advocate seeking a job. It was
a political job. And that was 1985.''
Rather than defend
his letter, in other words, Alito preferred to leave the impression
that he might have been engaging in a bit of opportunism. Does
that mean that 20 years from now, he will say that his statements
to members of the Senate Judiciary Committee were simply those
of a circuit court judge seeking a promotion and were never intended
to be taken too seriously?
Alito's
supporters also tried hard to minimize the importance of the Roe
strategy memo. Steve Schmidt, the White House official who is
managing the Alito confirmation, said reading the memo as an indication
of ``how he would rule as a Supreme Court justice'' is ``a fairly
absurd proposition.''
When it comes to
having an argument about abortion, the administration's strategy
is cut and run.
There are
some conservatives who realize the danger for Alito and their
cause if he is seen as evasive. Writing in The Weekly Standard,
Terry Eastland, who served in the Reagan Justice Department, noted
that ``the views Alito stated in his 1985 essay were plainly,
and proudly, his own, and for that reason they cannot so easily
be set aside.'' Eastland added: ``The better strategy for Alito
is the more credible one of straightforwardly discussing the substance
of what he wrote.''
Bruce Fein,
a conservative legal scholar who supports Alito and worked with
him in the Reagan years, has been outspoken in questioning the
conservative strategy of distancing Alito from his own writing.
``This idea that all the folks in the Reagan administration were
all apparatchiks who didn't believe what they were saying and
writing is surreal,'' Fein told The Washington Post.
Over the weekend, Fein warned that ``you end up losing more if
your credibility is strained and people think you're playing them
for dupes.''
Some conservatives
believe that doing that is the only way to win this game. They
point back to the defeat of Robert Bork in 1987 to argue that
Supreme Court appointees are better off with a strategy of evasion.
But there is quiet grumbling among members of the Senate Judiciary
Committee that Alito may be telling both sides what they want
to hear. That's a long way from the searching discussion of constitutional
principles that his nomination once promised to occasion.
©
2005, Washington Post Writers Group
