- The Washington Times - Tuesday, January 10, 2006

President Bush’s nomination of Samuel Alito Jr. to the Supreme Court was supposed to set off a war.

After the smooth, smiling, bulletproof John Roberts Jr., Judge Alito looked like a fat target for Democrats. A sitting judge with a long paper trail, he was reputedly as conservative as Justice Antonin Scalia — and he would replace a moderate, Sandra Day O’Connor. Interest groups on both sides were primed for all-out combat.

But two months later, the looming war looks more like a paintball contest: a choreographed romp that may leave the antagonists a bit spattered but spill no blood. Though plenty of liberals view him with intense dismay, Democratic senators show a curious reluctance to charge the enemy position.

Why? One of the unwritten laws of Washington: When you oppose a president’s judicial nominees, you can’t give your real reasons. (The same principle applies when you support them.) You need explanations that sound like olympian impartiality. And in this case, plausible objections are hard to come by.

One easy way to justify a “no” vote is to pronounce the nominee unqualified, inexperienced or mediocre — charges that killed Harriet Miers’ nomination. Another good pretext is misconduct, actual or alleged. Douglas Ginsburg went by the wayside amid revelations he smoked pot long after college. And Clarence Thomas was nearly voted down after Anita Hill accused him of sexual harassment. If all else fails, an arrogant manner will suffice, as Robert Bork learned.

By usual criteria, Judge Alito is a dream candidate: a widely respected lawyer with a wholesome family life, no significant ethical lapses, 15 years of service on the federal bench, and the highest rating from the American Bar Association. But to administration critics, those attributes are a nightmare. Though not the kind of justice most Democrats would like, Judge Alito is the kind of nominee many are loath to oppose vigorously.

If Judge Alito is such a stellar nominee, why would Democrats want to vote against him? For the same reason Mr. Bush chose him: He’s a conservative. But just as Mr. Bush insists merit alone mandated Judge Alito’s selection, liberal senators feel obliged to act as if ideology does not enter their decisions.

These pretenses bring to mind Rene Magritte’s painting of a smoker’s pipe, titled, “This is Not a Pipe.” In naming Judge Alito, the president said he is “scholarly, fair-minded and principled.” Fine traits, but not enough to close the deal. Many very accomplished judges were passed over by Mr. Bush purely because they are too liberal.

The administration may claim it just wants to find judges who will strictly interpret the Constitution and avoid legislating from the bench. But allies are clear their chief concern is results.

The conservative Committee for Justice has endorsed Judge Alito on the grounds his critics at the American Civil Liberties Union have “fought for the right to desecrate the American flag” and have worked “to see that children are not protected from online pornography.” CFJ doesn’t mention that when the court sanctioned flag-burning, it was supported by Justice Scalia, that supposed model of judicial restraint. Nor does it note that among the justices voting to block the Children’s Online Protection Act were two conservative heroes, Justices Scalia and Thomas.

Some liberals, like those at People For the American Way, say upfront they oppose Judge Alito because he’s at the other end of the political spectrum — “ultraconservative,” as they put it. But Senate Democrats prefer to talk about things like his respect for privacy and deference to precedent. It’s a rare Democratic senator who will declare outright, as Vermont’s Patrick Leahy has, he will vote on an ideological basis.

As a libertarian, rather than a conservative or a liberal, I find Judge Alito congenial to my outlook about half the time — which, given his sterling credentials, means I’m inclined to support him. However I ultimately come down, though, I won’t deny ideology matters to me, just as it does to President Bush, the Committee for Justice and even Judge Alito himself.

Democratic senators shouldn’t be ashamed to admit it also matters to them. Saying the Senate should vote on Supreme Court nominees without considering ideology is like saying people should choose their food without considering taste.

Steve Chapman is a nationally syndicated columnist.

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