[Mb-civic] Alito's Challenge - David S. Broder - Washington Post
Op-Ed
William Swiggard
swiggard at comcast.net
Sun Jan 8 07:10:50 PST 2006
Alito's Challenge
By David S. Broder
Sunday, January 8, 2006; B07
The two names uppermost on the minds of official Washington at this
moment represent polar extremes of reputation. Disgraced lobbyist Jack
Abramoff is an admitted felon and a certified sleaze. Supreme Court
nominee Judge Samuel Alito is an upright, ethical and highly respected
jurist, as modest in his habits as Abramoff is flamboyant.
Abramoff's operations have been thoroughly exposed by the reporting of
my colleagues at The Post and in the plea agreements he signed with
federal prosecutors, sending tremors of anxiety through the ranks of
congressional Republicans and a few Democrats as well.
Alito's work, as a member of the Philadelphia-based U.S. Court of
Appeals for the 3rd Circuit, will become much more familiar to the
nation when the Senate Judiciary Committee holds its hearings this week
on his nomination to succeed Justice Sandra Day O'Connor.
The question that confronts the senators is whether Alito has an agenda
that is every bit as well-defined as that for which the Indian tribes
and others hired Abramoff -- but vastly larger in significance.
The goals for which Abramoff connived were petty -- a gambling license
here, a contract there. The issues with which Alito has wrestled in his
15 years on the federal bench are much more consequential: the
relationship between individuals and the state, the regulatory authority
of the federal government, the balance of power between the president
and Congress, the protection of civil rights.
On all these issues, Alito has compiled a record that can be read -- and
is read by many legal scholars -- as reflecting a consistent and
reasoned preference for governmental authority, especially presidential
power, and a restrictive view of individual rights.
University of Chicago law professor Cass Sunstein, for example,
concluded a study of Alito's dissents with the observation that "there
is a good chance that Alito will be with Justices [Antonin] Scalia and
[Clarence] Thomas in their attempts to move constitutional law in some
respects to what it was a long time ago."
If that reading is correct, then the confirmation of Alito as O'Connor's
successor would shift the current Supreme Court balance decisively to
the right.
For senators who share President Bush's often-expressed desire to see
that happen, the confirmation of Alito presents no conflict. Moreover,
his "highly qualified" rating from the American Bar Association
underlines the near-universal belief that his intellect and temperament
commend him for the bench.
But others face a harder task in weighing the Alito nomination. They may
well ask: At a time when the administration is asserting a broad right
to conduct warrantless wiretaps of Americans' phone calls, do we really
need a Supreme Court that takes an expansionist view of presidential
authority? In an era of corporate corruption, do we want to restrict
consumers' and workers' ability to turn to the courts for help?
But the evidence on Alito's motivations is not one-sided. At the
suggestion of White House allies, I spoke with two of his former
colleagues who presented compelling personal testimony that he is not a
man driven by a personal or ideological agenda.
Robert Del Tufo was the Jimmy Carter-appointed U.S. attorney in New
Jersey who employed Alito in the 1970s to handle difficult appellate
cases. "There is no ideological bent that I can perceive," he told me.
"He is a balanced human being with great sensitivity for human values
and a scholar who analyzes the law and always stays with it."
Susan Sullivan of San Francisco clerked for Alito during the year he
wrote his controversial Casey opinion, upholding portions of a
Pennsylvania statute restricting abortion, a decision later overturned
by the Supreme Court. Sullivan, who describes herself as "a social
progressive who is pro-choice and anti-death penalty," says, "In general
I would react with suspicion to any nominee of this administration. But
having worked with him, I know he does not work toward a specific
result. He is not intent on advancing his own agenda. He approaches
cases in a very impartial way."
When John Roberts came before the Judiciary Committee for confirmation
as chief justice, with barely more than two years of judicial opinions
behind him, he was thoroughly believable in disclaiming any particular
agenda. All Republicans and half the Democrats saw him, as I did, as an
embodiment of judicial impartiality.
Maybe Alito can establish a similar claim for himself in these hearings.
But he has a lot of convincing to do.
http://www.washingtonpost.com/wp-dyn/content/article/2006/01/06/AR2006010601481.html
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