- The Washington Times - Thursday, November 3, 2005

The rap on Harriet Miers, W.’s first nominee to fill the seat on the U.S. Supreme Court now held by Sandra Day O’Connor, was that she was a blank slate. There was no there there, the country was told, so the lady never got a chance to demonstrate there was. Between the always suspicious left (George W. Bush nominated her, didn’t he? She can’t be any good) and the more-conservative-than-thou right (Who knows whether she’s really pro-life?), Harriet Miers didn’t stand a chance. And her public slate will stay blank.

Now the president has nominated The Hon. Samuel Alito Jr., who has been hearing cases on the 3rd U.S. Circuit Court of Appeals for 15 years now — with a long and very public paper trail. There’s bound to be a lot there to plow through, weigh, assess and argue over.

At last. It’s about time the country had a debate on substance, on the actual decisions a judge has written, rather than yet another binge of political speculation.

This time there’ll be no be shortage of grist for the senators to examine. To begin, the judge’s critics won’t get much mileage out of his resume. It’s more than respectable, it’s impressive:

Princeton as an undergraduate, (Phi Beta Kappa), Yale Law School, a clerkship for a judge on the 3rd Circuit, four years in the U.S. solicitor general’s office, three years as a deputy assistant attorney general, and then a stint as U.S. district attorney in New Jersey before being appointed to the 3rd Circuit by the first President Bush. A blank slate he isn’t.

As an advocate, Samuel Alito’s record is impressive, having argued a dozen cases before the U.S. Supreme Court, winning eight, losing two and getting a couple of split decisions.

As an appellate judge, Samuel Alito has produced a number of opinions that may or may not indicate the direction he would go as an associate justice of the Supreme Court. But they do reveal an intelligence capable of construing the law and the court’s own precedents with reason and restraint.

In a majority opinion, the judge sided with an Iranian woman who sought political asylum in this country from that theocratic regime’s well-known tendency to hold women down.

He also wrote a majority opinion striking down a school district’s anti-harassment policy that turned out to be more of an anti-free-speech policy. Particularly since the banned speech posed no real threat to good classroom order. He found against another school district that hadn’t done enough to protect a student from bullying because the kid was perceived as different. Not exactly the record of a kneejerk of any kind.

In the confused and confusing field of church-state law, Judge Alito wrote a majority opinion upholding one of those Christmas/Winter Festival seasonal displays on government property that has everything from a Nativity scene to a menorah to a general endorsement of diversity. Such displays may be silly, but given the state of current constitutional law, it’s hard to see what’s unconstitutional about them.

The judge has written his share of dissents, too, notably in Planned Parenthood v. Casey, in which he would have upheld a Pennsylvania law requiring women seeking abortions to inform their husbands. In an instance of judicial restraint, he was willing to credit the state Legislature’s good faith in believing some married women are initially inclined to an abortion without their husbands’ knowledge because of “perceived problems” that might be resolved if the husband knew of the planned abortion.

Following Supreme Court precedents, the judge agreed a New Jersey law restricting late-term abortions was unconstitutional despite his personal reservations. And he voted to overturn restrictions on publicly funded abortions in Pennsylvania, holding federal policy trumped state law.

It won’t be easy depicting this judge as some kind of fanatic, though surely his critics will try. If anything is predictable about the kind of decisions he would write as an associate justice of the U.S. Supreme Court, it’s that they wouldn’t be easy to predict. Cases don’t reach the high court because they’re simple, and neither should judges.

Judge Alito’s opinions may not be marked by eloquence, but they indicate that, whether you would call him conservative or very conservative, he is definitely a thinking conservative, which could be just what worries kneejerk liberals most.

The Schumers and Kennedys in the Senate would be delighted to pick apart a stereotypical right-winger. It’s the thoughtful conservative who is hardest to criticize — and who in the end surely has the greatest influence on the law.

Paul Greenberg is a nationally syndicated columnist.

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