January 8, 2006
Should the Senate Vote on Alito's Ideology?

By Steve Chapman

President Bush's nomination of Samuel Alito Jr. to the Supreme Court was supposed to set off a war. After the smooth, smiling, bulletproof John Roberts Jr., Alito looked like a fat target for Democrats. A sitting judge with a long paper trail, he had the reputation of being as conservative as Justice Antonin Scalia -- and he would replace a moderate, Sandra Day O'Connor. Interest groups on both sides were primed for all-out combat.

But two months later, the looming war looks more like a paintball contest: a choreographed romp that may leave the antagonists a bit spattered but will spill no blood. Though plenty of liberals view him with intense dismay, Democratic senators show a curious reluctance to charge the enemy position.

Why? Because of one of the unwritten laws of Washington: When you oppose a president's judicial nominees, you can't give your real reasons. (The same principle applies when you support them.) You have to devise explanations that give the impression of olympian impartiality. And in this case, plausible objections are hard to come by.

One easy way to justify a "no" vote is to pronounce the nominee unqualified, inexperienced or mediocre -- charges that killed Harriet Miers' nomination. Another good pretext is misconduct, actual or alleged. Douglas Ginsburg went by the wayside amid revelations that he smoked pot long after college, and Clarence Thomas was nearly voted down after Anita Hill accused him of sexual harassment. If all else fails, an arrogant manner will suffice, as Robert Bork learned.

By the usual criteria, Alito is a dream candidate: a widely respected lawyer with a wholesome family life, no significant ethical lapses, 15 years of service on the federal bench, and the highest possible rating from the American Bar Association. But to the administration's critics, those attributes make him a nightmare. Though Alito is not the kind of justice most Democrats would like, he's the kind of nominee that many are loath to vigorously oppose.

If Alito is such a stellar nominee, why would Democrats want to vote against him? For the same reason Bush chose him: He's a conservative. But just as Bush insists that merit alone mandated Alito's selection, liberal senators feel obliged to act as though ideology does not enter into their decisions.

These pretenses bring to mind Rene Magritte's painting of a smoker's pipe, titled, "This is Not a Pipe." In naming Alito, the president said he is "scholarly, fair-minded and principled." Fine traits, but not sufficient to close the deal. Plenty of highly accomplished judges were passed over by Bush purely because they are too liberal.

The administration may claim it just wants to find judges who will strictly interpret the Constitution and avoid legislating from the bench. But its allies make clear that their chief concern is results.

The conservative Committee for Justice has endorsed Alito on the grounds that his critics at the American Civil Liberties Union have "fought for the right to desecrate the American flag" and have worked "to see that children are not protected from online pornography." CFJ doesn't mention that when the court sanctioned flag-burning, it had the support of Scalia, that supposed model of judicial restraint. Nor does it note that among the justices voting to block the Children's Online Protection Act were two conservative heroes, Scalia and Thomas.

Some liberals, like those at People For the American Way, say upfront that they oppose Alito because he's at the other end of the political spectrum -- "ultraconservative," as they put it. But Senate Democrats prefer to talk about things like his respect for privacy and deference to precedent. It's a rare Democratic senator who will declare outright, as Vermont's Patrick Leahy has, that he will vote on the basis of ideology.

As a libertarian, rather than a conservative or a liberal, I find Alito to be congenial to my outlook about half the time -- which, given his sterling credentials, means I'm inclined to support him. However I ultimately come down, though, I won't deny that ideology matters to me, just as it matters to President Bush, the Committee for Justice and, come to think of it, Alito himself.

Democratic senators shouldn't be ashamed to admit that it also matters to them. Saying the Senate should vote on Supreme Court nominees without considering ideology is like saying people should choose their food without considering taste.

Copyright 2005 Creators Syndicate

Steve Chapman

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