- The Washington Times - Thursday, January 12, 2006

Samuel Alito felt he had to appease the liberal gods during the early stages of his Senate Judiciary Committee hearings by declaring he has “no agenda.” Conservatives are supposed to say such things, whether they mean them or not.

Liberals have an agenda: to change the culture of the nation by judicial edicts.

Sen. Charles Schumer, New York Democrat, summarized the left’s agenda. He declared Judge Alito has a “triple burden.” Not only is he replacing the swing vote of Justice Sandra Day O’Connor, he must also prove he is not the handmaiden of the religious right and would not take extreme positions on constitutional issues.

Nowhere in the Constitution is there mention of a swing vote seat (or a minority or female seat, either, as some liberals have suggested). Nowhere in the Constitution is “extreme” defined. It could be argued there have been many extreme positions taken by the court — from Dred Scott v. Sandford (in which the court majority decided slaves could never be considered citizens of the United States, to Roe v. Wade in which a majority claimed a woman had total autonomy over the life of her unborn child.)

If Mr. Schumer is concerned about justices taking extreme positions, he should have issues with Justice Ruth Bader Ginsburg, whose writings and pronouncements revealed her belief, while an American Civil Liberties Union lawyer, in legalizing human relationships beyond male-female marriage and secularizing the public square. To liberals, such a position is mainstream.

Judge Alito’s performance has not equaled John Roberts’, now chief justice, but his grasp of law and the Constitution shows he will make a thoughtful and wise justice, as long as he refrains from reading the editorial pages of The Washington Post and New York Times, hires law clerks who believe as he does and avoids dinner parties in Georgetown and Cleveland Park, where the liberal siren song tries to turn conservative justices into mushy moderates (like Justices O’Connor and Anthony Kennedy) and encourage stealth liberals, like David Souter, who was sold as a conservative, but needed little help in his rapid leftward drift.

To borrow from Forrest Gump’s mother, a Supreme Court justice is like a box of chocolates… you never know what you’re gonna get.

Judge Alito seemed to have his “legal chocolates” sorted out when he properly noted no president is above the law, one must put aside personal beliefs as a judge (if only liberals would do so) and a state of war is not a “blank check” for a president when it comes to the rights of its citizens. Judge Alito was properly cautious on this last point, leaving himself room to decide those presidential rights based on the cases that come before him. He noted complicating factors involving executive branch authority, potentially creating a “twilight zone.”

Judge Alito said the courts should generally follow their earlier decisions and avoid being moved by public opinion on controversial issues. If earlier courts had accepted that view, the right to life of more than 40 million babies might have been preserved and we would not struggle over the definition of marriage, free religious expression and censorship of the Pledge of Allegiance in public schools.

The left has not been able to demonize Judge Alito as it did Clarence Thomas and Robert Bork. For one thing, it no longer controls the information flow. Alternative media have splendidly countered every wrong assertion of liberal senators and advocacy groups writing their talking points. Unless they come up with something more profound than Sen. Edward Kennedy’s claim Judge Alito favors big business and big government over the little guy, Judge Alito is likely to be confirmed.

The question then becomes whether Justice Alito will cling to his conservative judicial philosophy and interpret laws in light of what the Constitution says or drift toward the liberal agenda, as has happened too often in the past?

One clue he might not drift came in his answer to a question about legal precedent. Responding to Committee Chairman Arlen Specter, Pennsylvania Republican, Judge Alito said, while he agrees “with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent” he nevertheless does not subscribe to the idea of a “super precedent.”

That leaves Judge Alito enough wiggle room to become a super justice with the Constitution as his sole agenda.

Cal Thomas is a nationally syndicated columnist.

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