December 10, 2005

Duh-bya has nominated ultra-conservative Judge Samuel Alito to the Supreme Court. It is the president’s prerogrative to nominate whomever he (or — if the fates allow — she) chooses. Just as it’s the Senate’s prerogative to ascertain that the nominee is a wise (in both senses of the word) choice. After Bush was (re-?) elected in November 2004, I knew that it would only be a matter of time before the legacy of the Warren Court — a legacy of fairness — was jeopardized.

One would hope that a president re-elected with a measly 51% margin would acknowledge the substantial 49% of the country who voted against him, and that he would look to a moderate choice for the High Court. But with George W., that’s just too much to hope for. For him, a win — no matter how narrow or how dubious — is a win. He’s deaf to all criticism, however well taken, and seems perfectly content to be president of the Republican Party — the Democrats and liberals of America be damned.

When Bush nominated his legal advisor, Harriet Miers, to the Court earlier this year, she seemed agreeably moderate, but her nomination implicitly said volumes more about the president’s insularity and his rewarding of loyalty than it ever did about Miers’s qualifications for the job. Indeed, it was Miers’s very non-committal stance on such red-meat red-state issues as abortion and gun control that led Bush’s base to object to her nomination. Her withdrawal on laughably disingenuous grounds and her replacement with the hard-core conservative Alito also speak volumes about Bush being more devoted to his narrow base than he is to the country as a whole.

The “smoking gun” regarding Alito’s hard-core conservative views came in the form of a 1985 application to the Reagan administration’s Department of Justice, in which Alito blatantly proclaimed that the Constitution did not protect a woman’s right to choose or racial “quotas.” Some conservative apologists are now saying that this statement reflected only the youthful views of an eager job applicant, and at any rate, Alito would never allow his personal views to interfere with his judicial views. But syndicated columnist Marianne Means concisely rebuts all of these that-was-then arguments:

Argument one: He was only 35 at the time of the Reagan job application, and he is a wiser person now. Sen. Joseph Biden (D-Del.) quickly demolished that one, pointing out that by the time he had attained the age of 35, he had served in the Senate for five years, and nobody ever gave him a pass for youthful voting mistakes.

Argument two: Alito was an advocate seeking a job and therefore the document should not be considered definitive. Sen. Edward Kennedy (D-Mass.) wasn't impressed by that dodge. “Why shouldn’t we consider the answers that you're giving today an application for another job?” Kennedy inquired. Kennedy suggested that if Alito would sacrifice principle to pander to a prospective employer back then, why wouldn't he do so now?

Argument three: Alito respects precedent. Phooey. As a lower-court judge, he had no choice but to do so. But on the Supreme Court, he has the power to fiddle with precedents all he wants. It's been done before.

If events continue on their present course, it will only be a matter of time before Roe vs. Wade, the landmark 1973 Supreme Court decision that recognized abortion as a woman’s constitutional right, is overturned. This saddens me. I don’t say this as any great fan of abortion. If a woman is contemplating getting an abortion but still has some doubts, I would encourage her not to go through with the procedure. But if she does want to have one, it should be in a safe and legal setting, preferrably before the fetus is viable. The choice should be hers. And as Justice Sandra Day O’Connor said, if a woman is compelled by others to carry a pregnancy to term, this puts her at a disadvantage with her male competitors on the job market, who would never face the physical predicament of pregnancy. In this instance, abortion is an [employment] equalizer.

I’m not dead-set against any kind of limitation on abortion, provided that there is a legitimate necessity for the limitation, but every piece of abortion-limiting legislation that I have heard of seems more like a bad-faith means to overturn or disempower Roe than a good-faith legislative solution to a genuine need. Some pro-choice liberals argue, quite sensibly, that abortion should remain legal but is not in the Constitution, and therefore, Roe ought to be overturned. But at the moment, constitutionality is the only thing keeping abortion legally alive. If the Supreme Court were to overturn Roe anytime soon, I’m sure the Republican-dominated Congress would quickly ram through a bill outlawing abortion — with Senate Republicans probably employing the “nuclear option” to thwart any Democratic fillibuster.

The sad thing is that this is a country of great legal talent, both conservative and liberal. If presidents were to nominate judges based on the distinction of their legal performance — whether they were pro-Roe or anti-abortion — we could have a Supreme Court of which we could all be proud. Instead, we now have a “stealth” court, a court where the nominees have little paper trail and opaque legal opinions. Once they get on the Court, we finally realize how conservative their opinions are.

As much as I appreciate many of Justice David Souter’s opinions, he was also a stealth judge, nominated for his ideological opacity and not his judicial distinctiveness. The Republicans who voted for Souter obviously thought that they were getting a conservative, and he surprised them. But one Souter does not legitimize this ill-advised way to choose justices with lifetime tenure, and President Clinton wisely — and realistically — conferred with Senate Republicans before nominating Justices Ginsberg and Bryer.

Some conservatives will say that that we have a “stealth” Supreme Court because of the hostile way Democrats treated the nomination of openly conservative jurist Robert Bork, but Bork was nominated by President Reagan more for his ideology than his legal reasoning.

Alito’s nomination is the logical result of picking judges in a highly politicized atmosphere. It marks a sad predicament where true believers try to overturn a Supreme Court decision that they don’t like, instead of respecting it. But the Supreme Court is the final arbiter of the law of the land. And it’s sad to see it subjected to the forces of petty politics. Is it any wonder that we get a Court majority that writes such intellectually dishonest, results-oriented decisions as the election-subverting Bush vs. Gore?