Judge Alito's Radical Views

January 23, 2006
New York Times Editorial

If Judge Samuel Alito Jr.'s confirmation hearings lacked drama, apart from his wife's bizarrely over-covered crying jag, it is because they confirmed the obvious. Judge Alito is exactly the kind of legal thinker President Bush wants on the Supreme Court. He has a radically broad view of the president's power, and a radically narrow view of Congress's power. He has long argued that the Constitution does not protect abortion rights. He wants to reduce the rights and liberties of ordinary Americans, and has a history of tilting the scales of justice against the little guy.

As senators prepare to vote on the nomination, they should ask themselves only one question: will replacing Sandra Day O'Connor with Judge Alito be a step forward for the nation, or a step backward? Instead of Justice O'Connor's pragmatic centrism, which has kept American law on a steady and well-respected path, Judge Alito is likely to bring a movement conservative's approach to his role and to the Constitution.

Judge Alito may be a fine man, but he is not the kind of justice the country needs right now. Senators from both parties should oppose his nomination.
It is likely that Judge Alito was chosen for his extreme views on presidential power. The Supreme Court, with Justice O'Connor's support, has played a key role in standing up to the Bush administration's radical view of its power, notably that it can hold, indefinitely and without trial, anyone the president declares an "unlawful enemy combatant."

Judge Alito would no doubt try to change the court's approach. He has supported the fringe "unitary executive" theory, which would give the president greater power to detain Americans and would throw off the checks and balances built into the Constitution. He has also put forth the outlandish idea that if the president makes a statement when he signs a bill into law, a court interpreting the law should give his intent the same weight it gives to Congress's intent in writing and approving the law.

Judge Alito would also work to reduce Congress's power in other ways. In a troubling dissent, he argued that Congress exceeded its authority when it passed a law banning machine guns, and as a government lawyer he insisted Congress did not have the power to protect car buyers from falsified odometers.

There is every reason to believe, based on his long paper trail and the evasive answers he gave at his hearings, that Judge Alito would quickly vote to overturn Roe v. Wade. So it is hard to see how Senators Lincoln Chaffee, Olympia Snowe and Susan Collins, all Republicans, could square support for Judge Alito with their commitment to abortion rights.

Judge Alito has consistently shown a bias in favor of those in power over those who need the law to protect them. Women, racial minorities, the elderly and workers who come to court seeking justice should expect little sympathy. In the same flat bureaucratic tones he used at the hearings, he is likely to insist that the law can do nothing for them.

The White House has tried to create an air of inevitability around this nomination. But there is no reason to believe that Judge Alito is any more popular than the president who nominated him. Outside a small but vocal group of hard-core conservatives, America has greeted the nomination with a shrug - and counted on its senators to make the right decision.

The real risk for senators lies not in opposing Judge Alito, but in voting for him. If the far right takes over the Supreme Court, American law and life could change dramatically. If that happens, many senators who voted for Judge Alito will no doubt come to regret that they did not insist that Justice O'Connor's seat be filled with someone who shared her cautious, centrist approach to the law.