Another Lost
Opportunity
EDITORIAL, NYTimes on
the Web, November 1, 2005
The nomination of Samuel Alito Jr. to
the Supreme Court raises a lot of questions about the judge's attitudes toward
federalism, privacy and civil rights. But it has already answered one big
question about President Bush. Anyone wondering whether the almost endless
setbacks and embarrassments the White House has suffered over the last year
would cause Mr. Bush to fix his style of governing should realize that the
answer is: no.
As a political candidate, Mr. Bush had an extremely useful ability to repeat the
same few simple themes over and over. As president, he has been cramped by
the same habit. The solution to almost every problem seems to be either to
rely on a close personal associate or to pander to his right wing. When
the first tactic failed to work with the Harriet Miers nomination, Mr. Bush
resorted to the second. The Alito nomination has thrilled social
conservatives, who regard the judge to be a surefire vote against abortion
rights.
Judge Alito is clearly a smart and experienced jurist, with 15 years on the
United States Court of Appeals for the Third Circuit. The nominee should
be given a serious hearing. The need for a close and careful review of
Judge Alito's record is all the more crucial because he will be replacing
Justice Sandra Day O'Connor, who has been the swing vote of moderation on so
many issues.
The concerns about this particular nominee go beyond his apparent hostility to
abortion, which was most graphically demonstrated in 1992 when his court ruled
on what became known in the Supreme Court as the Casey decision. Judge
Alito was the sole judge on his court who took the extreme position that all of
Pennsylvania's limitations on abortion were constitutional, including the
outrageous requirement that a woman show that she had notified her spouse.
Judge Alito has favored an inflated standard of evidence for racial- and
sex-discrimination cases that would make it very hard even to bring them to
court, much less win. In an employment case, he said that just for a
plaintiff to have the right to a trial, she needed to prove that her employers
did not really think they had chosen the best candidate for a job. When
lawyers for a black death-row inmate sought to demonstrate bias in jury
selection by using statistics, Judge Alito dismissed that as akin to arguing
that Americans were biased toward left-handers because left-handed men had won
five out of six of the preceding presidential elections.
At least as worrisome are Judge Alito's frequent rulings to undermine the
federal government's authority to address momentous national problems.
Dissenting in a 1996 gun control case, he declared that Washington could not
regulate the sale of fully automatic machine guns. In 2000, Judge Alito
said Washington could not compel state governments to abide by the Family and
Medical Leave Act, a position repudiated by the Supreme Court in a decision
written by Justice William Rehnquist.
When a judge is more radical on states' power than Justice Rehnquist, the
spiritual leader of the modern states' rights movement, we should pay attention.
There are more moderate rulings in Judge Alito's record as well, and it will be
up to the Senate to sort this out. Does he show merely a conservative
bent, or a zealotry outside the mainstream that poses a threat to basic rights
and protections?
Whatever the answer, this nomination is yet another occasion to bemoan lost
opportunities. Mr. Bush could have signaled that he was prepared to move
on to a more expansive presidency by nominating a qualified moderate who could
have garnered a nearly unanimous Senate vote rather than another party-line
standoff. He could have sent a signal about his commitment to
inclusiveness by demonstrating that he understood his error with Harriet Miers
had been in picking the wrong woman, and that the answer did not have to be the
seventh white man on the court. But he didn't, any more than he saw Sept.
11 as an opportunity to build a new, inclusive world order of civilized nations
aligned against terrorism.
Anyone who imagines that the indictment of Lewis Libby and the legal troubles of
Karl Rove will be a cue to bring fresh ideas to the White House should read the
signs. With more than three years to go in this term, the bottom line is
becoming inescapable. Mr. Bush does not want to change, and perhaps is not
capable of changing. The final word on the Supreme Court is yet to come,
but the message about the presidency could not be more disheartening.
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