Any chance that the Alito nomination would be peaceful is pretty much over. Today’s Washington Times reports that Alito wrote in the 1980s that he believed that there is no right to abortion in the Constitution.
Judge Samuel A. Alito Jr., President Bush’s Supreme Court nominee, wrote that “the Constitution does not protect a right to an abortion” in a 1985 document obtained by The Washington Times.
“I personally believe very strongly” in this legal position, Mr. Alito wrote on his application to become deputy assistant to Attorney General Edwin I. Meese III.
This will undoutably be the “smoking gun” that will bring the pro-choice activists out of the woodwork. This will be as bad as the Bork hearings and I can see the television commercials now.
Already, Republicans are starting to sound defensive:
A leading Republican involved in the nomination process insisted that this does not prove Judge Alito, if confirmed to the Supreme Court, will overturn Roe v. Wade, the landmark 1973 Supreme Court ruling that made abortion a constitutional right.
“No, it proves no such thing,” said the Republican, who spoke on the condition of anonymity. “In fact, if you look at some of the quotes of his former law clerks, they don’t believe that he’ll overturn Roe v. Wade.”
Judge Alito sided with abortion proponents in three of four rulings during his 15 years as a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, usually based on existing law and technical legal issues rather than the right to abortion itself.
This may be true, but going on the defensive is not going to win the war that this nomination is likely to become. Let Alito defend his views on judicial restraint and let the left explain why they think the unelected branch of government should have supremacy over the other two.
In addition to providing a clue as to what his views on abortion might be, the documents from the Reagan Administration also are reassuring to those of us who believe in judicial restraint:
Although Judge Alito’s conservatism has not been particularly evident in his legal rulings, it was abundantly clear in his job application 20 years ago.
“I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values,” he wrote.
“In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate,” he added.
Bravo. Alito may not turn out to be the perfect Supreme Court Justice, but this is a pretty good indication that Bush made the right choice this time.
The Roberts nomination never really materialized into the debate over the role of the judiciary that many were anticipating, perhaps that will come now. Bring it on.
Stephen Bainbridge says that this news is vindication for the opponents of the Harriet Miers nomination.