- The Washington Times - Thursday, November 3, 2005

The same blogs that registered extreme opposition to Harriet Miers’ Supreme Court nomination are overjoyed by President Bush’s selection of Judge Samuel A. Alito Jr. to replace Justice Sandra Day O’Connor.

Manuel Miranda, chairman of the Third Branch Conference and former Bush speechwriter David Frum were among the first to openly criticize Miss Miers. He calls Judge Alito “immensely well qualified” and “a constitutionalist who has weathered one of the more liberal federal circuit courts in the country.” Mr. Miranda likened the Alito nomination to that of now Chief Justice John Roberts, calling it “a grand slam.”

Other reactions from conservatives were similarly ecstatic. Americans for Better Justice, which opposed the Miers nomination, said, “Judge Alito possesses both the brilliance and humility necessary in a Supreme Court justice.”

Unlike the Miers pick, Judge Alito’s qualifications are beyond doubt. That means the debate will center on his judicial philosophy, which positions conservatives for the ideological fight they’ve been seeking.

That battle will be fought over two main issues: abortion and religious freedom. Liberal Democrats and some Republicans will want to know the reasoning behind Judge Alito’s disagreement with the 3rd Circuit majority in Planned Parenthood v. Casey. In that ruling, as the lone dissenter, Judge Alito voted to uphold Pennsylvania’s informed consent, parental consent and reporting and public disclosure requirements. The Supreme Court later affirmed his court’s majority decision.

In another highly charged case, Judge Alito favored spousal notification prior to an abortion, based on the “undue burden” standard articulated by Justice O’Connor in Supreme Court cases Webster v. Reproductive Services and Hodgson v. Minnesota. The law Judge Alito upheld fell short of giving husbands veto power over wives’ decision to have an abortion.

While pro-choicers are already attacking that ruling, it is important to note that spousal notification was not Judge Alito’s idea. Pennsylvania voters enacted it with four safeguards allowing a woman to have an abortion without telling her husband: (1) if the woman believed the husband was not the father; (2) if the husband could not be found after diligent effort; (3) the pregnancy was due to a spousal sexual assault reported to authorities, and (4) the woman believed the notification was likely to result in the infliction of bodily injury to her. Judge Alito’s role was to decide if Pennsylvania voters had violated the Constitution by enacting such a statute.

Judge Alito does not appear to be a judicial maverick. In an affirmation of precedent, he voted to strike down New Jersey’s ban on partial-birth abortion because of an earlier Supreme Court ruling that a similar Nebraska law was unconstitutional. He emphasized the “responsibility” of judges “to follow and apply controlling Supreme Court precedent.”

On religious freedom questions, Judge Alito’s rulings appear to side with conservatives who favor free religious expression in public places, rather than with liberals who mostly favor a public square devoid of religious speech.

In 1990, the Senate Democrat majority unanimously approved his nomination by former President George H.W. Bush to the federal Court of Appeals. He won plaudits from several liberal senators, including Frank Lautenberg of New Jersey, who said Judge Alito is “the kind of judge the public deserves — one who is impartial, thoughtful and fair.” New Jersey Sen. Bill Bradley backed Judge Alito “100 percent” and said he would “make a contribution that will stand the test of time.”

Even Sen. Edward Kennedy of Massachusetts liked Judge Alito, saying he has a “distinguished record … [w]e look forward to supporting you.” Sen. Arlen Specter, Pennsylvania Republican and now Judiciary Committee chairman, said Judge Alito’s 1990 nomination to the Appeals Court deserved “clear sailing.”

Having enthusiastically backed Judge Alito then, it will be difficult for liberal Democrats to claim he is unqualified for the Supreme Court now. But they will make their usual claims that someone who might overturn what previous activist judges have imposed on the country is “out of the mainstream.”

Conservatives have been itching for an ideological battle over the Constitution and the direction of the court. Depending on the level of liberal opposition, they may get one.

If Judge Alito turns out the way his record and judicial philosophy indicate he might, conservatives could be thanking Mr. Bush for decades to come.

Cal Thomas is a nationally syndicated columnist.



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