The Democrats and
Judge Alito
EDITORIAL, NYTimes on
the Web, November 13, 2005
Judge Samuel Alito has been working
hard to win over moderate Democratic senators. But just as it would be
irresponsible to reject his nomination to the Supreme Court without giving him a
full hearing, it is unwise to embrace it -- or rule out the possibility of a
filibuster -- until more is known.
The Alito nomination is a defining moment for the country, and for the
Democratic Party. Given the sharp divisions on the court, the next justice
could decide the scope of reproductive freedom, civil rights and civil
liberties, and environmental and workplace protections that Americans will live
with for years. Although many questions remain to be answered, there is
reason to believe that Judge Alito could do significant damage to values
Democrats have long stood for.
Conservative Republicans demonstrated that they have a clear idea of what they
want for the Supreme Court. They proved that once again with their
insurrection against Harriet Miers. Now Democratic senators have to show
their supporters that they are no less willing to fight for their vision.
Judge Alito has tried to reassure Democratic senators by talking about his
respect for Supreme Court precedents, including Roe v. Wade. It
would be unwise to put too much stock in such reassurances. Even justices
who value precedent, as most do, sometimes overturn existing case law with which
they disagree. It should give Democrats pause that after Judge Alito's
meetings with senators, both sworn opponents of Roe and fervent
supporters have emerged reassured.
Even if Judge Alito does stand by important precedents, there is still reason
for concern. Under Chief Justice William Rehnquist, the Supreme Court
perfected the art of reaffirming precedents in areas like criminal procedure
while poking enough holes in them to render them almost unrecognizable.
Judge Alito showed as a federal appeals court judge -- when he voted to uphold a
Pennsylvania law requiring women to inform their husbands before getting an
abortion -- that abortion rights can be severely diminished even within the
framework of Roe. The same thing could be true in other areas.
One group that clearly does not believe that Judge Alito will be a slave to
existing Supreme Court precedents is the far right. Many of the same
groups and individuals who waged a fierce campaign against Ms. Miers, President
Bush's previous nominee for this seat, appear to be lining up in support of
Judge Alito. Senator Sam Brownback, a Kansas Republican who strongly
opposes abortion, and other rights the court has recognized over the years,
declared after meeting with Judge Alito, "This is the type of nominee I've been
asking for."
The confirmation hearings, which are scheduled to start in early January, should
shed light on whether he is in the mainstream of the law or outside it.
Democrats should put a heavy burden on Judge Alito to show that he would not do
damage to the Constitution, and to Americans' cherished rights.
The Alito nomination comes at a critical moment for the Democratic Party.
With President Bush's poll numbers plummeting, Democrats are finding a new
optimism about their chances in 2006 and 2008. But to capitalize on the
Republicans' weakness, the party needs to show that it has an alternative vision
for the country. As the Democrats refine their message for next year's
elections, the first thing they need to be able to say to the American people is
that they did not sit by idly while the far right took over the Supreme Court
and began dismantling fundamental rights and freedoms.
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