Alito's Artless Dodges

by Marianne Means

Applying for a political job in the Reagan administration in 1985, Samuel Alito was eager to please by portraying himself as the perfect right-wing puppet.

He flatly declared that the Constitution does not protect a woman's right to choose an abortion and that he was "particularly proud" of opposing racial and ethnic quotas. He said he disagreed with rulings of the U.S. Supreme Court under Chief Justice Earl Warren in the 1950s and 1960s that desegregated schools and expanded voting rights.

Now that the Supreme Court nominee has a different, bipartisan constituency to please as he seeks Senate confirmation, he presents himself as far less dogmatic in his judicial reasoning.

Alito's excuses for this supposed 15-year ideological shift are not persuasive.

Argument one: He was only 35 at the time of the Reagan job application, and he is a wiser person now. Sen. Joseph Biden, D-Del, quickly demolished that one, pointing out that by the time he had attained the age of 35, he had served in the Senate for five years, and nobody ever gave him a pass for youthful voting mistakes. At 35, some maturity should have set in.

Argument two: Alito was an advocate seeking a job and therefore the document should not be considered definitive. Sen. Edward Kennedy, D-Mass., wasn't impressed by that dodge. "Why shouldn't we consider the answers that you're giving today an application for another job?" Kennedy inquired. Kennedy suggested that if Alito would sacrifice principle to pander to a prospective employer back then, why wouldn't he do so now?

Argument three: President Bush never asked Alito his views on abortion and can't imagine what he would do on the bench. This is ridiculous. Bush doesn't have to ask, because he looked at Alito's record. He already knows.

Argument four: Alito respects precedent. Phooey. As a lower court judge, he had no choice but to do so. But on the Supreme Court, he has the power to fiddle with precedents all he wants. It's been done before.

It mostly comes down to whether he believes in a universal right to privacy, the principle upon which abortion is based. And Alito has been very circumspect about his views on that subject.

Moderates are increasingly suspicious that despite all the bobbing and weaving, Alito means to vote at the first opportunity to wipe abortion rights off the law books. If this impression hardens during his Senate nomination hearing, Democrats and other pro-choice senators have an unpalatable decision to face: Should they filibuster the nomination to try to talk it to death?

A constitutional crisis was narrowly averted earlier this year when 14 senators, half from each party, agreed to a compromise that allowed some filibustered federal court nominees to be confirmed in return for a Republican promise not to try to eliminate judicial filibusters altogether. It temporarily postponed a nasty explosion, but did not bring bipartisan peace to Capitol Hill.

Congressional tempers have been on ugly display lately over disputes about the Iraq war, the federal budget and tax cuts, mishandling of the Hurricane Katrina rescue efforts, the president's declining popularity and several GOP scandals.

This is not a political climate conducive to a debate on a stealthy conservative judicial nominee. Alito would replace the moderate Sandra Day O'Connor, and could solidify a sharp high-bench swing to the right.

Yet Republicans should be nervous about a high court repeal of abortion rights. It would eliminate their hottest issue. For decades, GOP candidates have aroused the faithful and raised money by appealing to religious conservatives who believe abortion is murder.

Further, if Roe v. Wade were reversed, those who believe in women's rights would become energized instead. And they will vote Democratic, or at least for moderate Republicans. Goodbye, Sen. Rick Santorum, R-Pa., and his ilk.

This theory was recently floated by Rep. Thomas Davis, R-Va., who predicted a political backlash and "a sea change in suburban voting patterns" in favor of Democrats if the court undid the 1973 abortion rights decision.

Davis understands the national mood. Dare we hope Alito does?