Justice & Alito

In winning re-election and engineering the emergence of a Republican majority in the Senate, President George W. Bush won the opportunity to turn the Court in an emphatically conservative direction. Although there was little the Democratic minority could have done to forestall Alito's ascendancy, their floundering performance still astounded. The clumsy attempts of some Democrats on the Senate Judiciary Committee to impugn Alito's character and integrity failed spectacularly, resulting in the now iconic image of the judge's wife bursting into tears and fleeing the hearing room. Republican outrage over Mrs. Alito's distress and the alleged smear tactics of the Democrats need not be taken too seriously, however. Under the tutelage of President Bush's political adviser Karl Rove, Republicans have all but perfected the low art of innuendo and character assassination. Still, Alito deserved better, and the Democrats owed it to the American people to show why the nominee's narrow and troubling judicial philosophy should be rejected.

There is little doubt that Alito's embrace of "judicial restraint" will result in rulings restricting the federal government's efforts in areas such as environmental protection, campaign-finance reform, voting rights, workplace safety and discrimination, and the rights of criminal defendants. Most worrisome, Alito gives every indication of being excessively deferential to the executive branch at a time when the president is asserting virtually unprecedented authority with regard to national defense, domestic spying, and the right to imprison people, including U.S. citizens, without trial.

Instead of pressing Alito on these questions, Democrats predictably focused on Roe, a decision whose constitutional reasoning Alito once quite reasonably condemned. Again and again, Democrats tried to get Alito to say Roe was "settled law" on a par with decisions about access to contraception or the "one man, one vote" reapportionment rulings of the Warren Court. Alito demurred, sending a signal that being "open-minded" about Roe meant being open to its reversal.

In fact, Roe was a terribly flawed decision, both constitutionally and morally. Thirty years of abortion on demand have done real damage to our collective sense of the sanctity and dignity of every human life, coarsened our culture and the relationship between men and women, and polarized our politics. Only legislative compromise is likely to lower the passions surrounding abortion. Such a development would also free the Democrats from the burden of defending Roe's absolutism and broaden the party's appeal. Unfortunately, Democratic senators on the Judiciary Committee don't see it that way.

Showcasing Alito's "up by my bootstraps" story, traditional values, religious faith, and respect for authority was central to the Republican strategy. Alito's allusions in his opening statement to the culture wars that have raged since the 1960s, his denunciation of the "irresponsibility" and excesses of his "privileged" college classmates, set the tone. What Alito's description of his college years conspicuously failed to include, however, was the irresponsibility of those in whom authority had been invested and tradition entrusted. Nor did Alito acknowledge that it was the courageous desegregation rulings of the Supreme Court and the landmark civil rights laws that set so much of the cultural conflicts of the sixties in motion. Respect for authority and traditional values, it is good to remember, once led many to believe the lies told to justify and prosecute the war in Vietnam. Those like Alito who deplored the excesses of the antiwar, women's, and civil-rights movements were also among the last to concede that President Richard Nixon authorized the burglary of his political opponents' headquarters and then lied about it.

Of course, there are not many apologists for the excesses of the sixties anymore, if there ever were. The culture wars that pit the religious and traditional against the unreligious and disrespectful are a pernicious simplification and a lie. It is disturbing that Alito resorted to such a ploy in introducing himself to the American people. Traditional values and respect for authority are usually the measure of common sense and decency, but they can camouflage injustice as well. "The judge's only responsibility is to the rule of law," Alito told the committee. "Only"? Sometimes the claims of justice rooted in the Constitution cannot be entirely vindicated by a narrow reading of the text, yet neither can they be denied if common sense and decency are to prevail. Alito gives little indication that he recognizes such democratic aspirations, especially in instances where the powerful confront the weak, most of whom embrace Alito's values and would like to emulate his "up by my bootstraps" story.

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Catholic Online editor's note: On Jan. 31, 2006, after the editorial was written and posted on Commonweal and the Catholic Online Web sites, Alito was confirmed by the U.S. Senate to be the 110th U.S. Supreme Court justice, and the fifth Catholic currently on the court.

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This editorial, from the Jan. 27, 2006, issue, is used with permission of Commonweal Magazine: A Review of Religion, Politics, and Culture (www.commonwealmagazine.org), a Catholic Online Preferred Publishing Partner.

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