A few of my pro-life friends are tentatively taking a position against President Bush’s current Supreme Court nominee, Samuel Alito, because three of four abortion rulings he has made during his tenure as a circuit court judge were anti-life.
I’m not. I support Judge Samuel Alito’s nomination to the Supreme Court.
Here are a couple columns to consider:
“Why Alito’s the man for the true conservative agenda,” by John Hinderaker and Paul Mirengoff, November 6, 2005, Washington Post
“How do we know Alito would overturn Roe?,” by Joseph D’Agostino, November 7, 2005, Human Events
Additionally, Judie Brown of American Life League has written in favor of Alito’s nomination, and we all know she’s tough. (Hat tip: Prolifeblogs.com)
All three pieces are reprinted in their entirety on page 2.
Why Alito’s the Man for the True Conservative Agenda
by John Hinderaker and Paul Mirengoff
November 6, 2005
For conservatives, it was a teaching moment, and a kind of vindication. Two months ago, millions of Americans watched as Supreme Court nominee John Roberts, billed as a conservative Republican, sat before the Senate Judiciary Committee, smoothly and confidently responding to the grilling of Democratic senators who had hoped to trip him up and expose him as an “outside the mainstream” danger to American jurisprudence. Roberts was smart, good-humored and sensible. The Democrats, very often, were not — think of Joe Biden’s outburst accusing Roberts of providing “misleading” answers.
Roberts kept his cool, showing the public a conservative who not only knew the law, but had the kind of temperament and balance we conservatives want in a Supreme Court justice.
The memory of that moment is one of the reasons why we responded with a collective sigh of relief to Harriet Miers’s withdrawal as a Supreme Court nominee, and with unanimous praise for President Bush’s selection of Samuel Alito to replace Sandra Day O’Connor on the bench. Once again, we believe we have an opportunity for a teaching moment. Alito, like Roberts, will run rings around the Democratic senators — even if, this time, the Democrats can remember where the strike zone is.
Most conservatives — even those who supported her nomination — were uneasy about Miers’s thin qualifications for the court. We know that Roberts is only one of a number of brilliant judicial conservatives whose accomplishments make them highly qualified for the Supreme Court. The Republican talent pool is deep and broad, in a way that it was not when Presidents Richard Nixon and Ronald Reagan were appointing judges.
Beginning with Nixon, most Republican presidential candidates have run against liberal activism on the court and, when elected, have tried to appoint more conservative justices. But the legal profession generally did not share in the populist view that the Warren Court of the day (named for Earl Warren, who served as chief justice from 1953 to 1969) often usurped legislative authority and invented rights. Only now has a new generation of conservative lawyers come of age, many of them influenced by the Federalist Society, which was founded in 1982 to propound the philosophy that “it is the province and duty of the judiciary to say what the law is, not what it should be.” These men and women, many of whom are serving on the lower federal courts, now provide a solid roster of candidates for the Supreme Court.
Conservatives were also troubled by the lack of any clear evidence of Miers’s judicial philosophy. This was not a matter of imposing a litmus test with respect to Roe v. Wade , or any other issue. In fact, the White House’s effort to provide credible evidence that Miers would likely vote to overturn Roe (evidence that didn’t exist in the case of Roberts, whom conservatives supported enthusiastically) did not assuage conservative critics. The administration failed to understand that conservative disappointment over the selection of Miers was not cynical and result-oriented, but principled and philosophical. Liberals’ complaints about the way conservatives reacted to Miers seem rooted in their disappointment that they now face a mismatch like the one Roberts presented, coupled with their dismay at the prospect of another outstanding conservative justice.
Focusing on what it means to be a “conservative” in this context highlights a basic asymmetry between how the left and the right look at the Supreme Court. Until the past few decades, nominations to the court were generally noncontroversial. The court was not viewed as a political power center, and most people assumed that a judge would affect their lives only if they happened to have a case before him. Thus, as recently as 1962, Justice Byron White was confirmed just 11 days after being nominated by President John F. Kennedy, by a unanimous voice vote in the Senate following a Judiciary Committee hearing that lasted a single morning.
What happened to turn Supreme Court nominations into mini-Armageddons? Liberals increasingly came to view the court as a legislature of last resort, where policies too liberal and too unpopular to be enacted by real legislatures could be mandated by fiat of the court’s liberal majority. The right to abortion ( Roe v. Wade , 1973), abolition of the death penalty (temporarily, anyway, in Furman v. Georgia , 1972), and recognition of a right to homosexual sodomy ( Lawrence v. Texas , 2003) are just a few of the more high-profile liberal policies that the court has imposed in recent decades. No conservative doubts that the next item on the liberal constitutional agenda is requiring the states to recognize gay marriage.
Conservatives, on the other hand, are willing to settle for what they can get from Congress and the state legislatures, and (since the New Deal era, at least) have not viewed the court as a vehicle for imposing conservative principles on an unwilling public. Roe , for example, rests on a right to privacy that the court discovered lurking among the penumbras of various constitutional provisions. If conservatives reasoned like liberals, they could try to put the penumbras to work for them. For instance, the federal income tax could be found to violate the right to privacy because it requires taxpayers to open up their private records to the government. But no conservative argues for anything of the sort.
When conservatives say that we want “conservative” judges, or “strict constructionist” or “constitutionalist” judges, what we mean is pretty simple: We want judges who won’t make stuff up. We want judges who won’t view the Constitution as a mirror in which, at every turn, they see reflected their own opinions and policy preferences. We want judges who will play it straight, read the Constitutional or statutory text (our text, not foreign ones, which the court has relied on in cases like last session’s Roper v. Simmons , which held execution of juveniles to be unconstitutional), and apply it as fairly as they can to the individual case before them.
If that were all, liberals would be left with little to say. But there is one thing more: The corollary of the proposition that judges shouldn’t make up stuff that isn’t in the Constitution or laws is that judges also don’t have the discretion to ignore language that is in the Constitution or the laws. Thus, the interstate commerce clause must be recognized as a limitation on Congress’s power to regulate the economy, as Judge Roberts noted in the case of the “hapless toad.” The Fourteenth Amendment’s guarantee of equal protection of the laws can’t be ignored every time a public university wants to prefer some applicants over others, based on race. And the Second Amendment’s guarantee of the right to keep and bear arms can’t be treated as if it got repealed somewhere along the way.
It is in connection with such issues that liberals often argue that conservative judges are really just as “activist” as liberal judges, if not more so. This is based on the observation that conservatives sometimes hold statutes unconstitutional because, for example, they exceed the constitutional limits on federal power. But again, liberals overlook a fundamental asymmetry: It is activist to import something into the Constitution that is not written there, based on one’s own policy preferences. It is not activist to apply and enforce the Constitution as it is written. That, on the contrary, is the duty of every state and federal judge.
This is the context in which conservatives have hailed Alito as a more solidly conservative, or reliably conservative, choice than Harriet Miers or past choices such as O’Connor and David Souter. Not because Alito, or we, have a secret agenda to invalidate legislation that conflicts with conservative beliefs. Rather, because Alito has a track record of deciding cases based on the facts and the law, not upon his own personal opinions and preferences. And because he has demonstrated the courage required to read the Constitution without glossing over the terms that modern liberals find inconvenient — as, for example, in his opinion in United States v. Rybar , which Democrats are trying to twist into an endorsement of private ownership of machine guns. Alito, noting that machine gun ownership was already regulated under state law in all of the states making up the Third Circuit, simply followed Supreme Court precedent in recognizing that the commerce clause is not a blank check that negates the concept of limited federal government.
The Miers-Alito moment shows that conservatives prefer demonstrated excellence to its absence, openness to stealth, and adherence to constitutional text to the promise of any particular result. Which makes it amusing to hear liberals, disgruntled at the replacement of a thinly qualified stealth candidate with a nominee who has a 15-year judicial track record and an intellectual capacity they don’t dispute, accusing conservatives of cynicism.
John Hinderaker and Paul Mirengoff write for the Power Line blog and practice law in Minneapolis and Washington, respectively.
© 2005 The Washington Post Company
How Do We Know Alito Would Overturn Roe?
by Joseph A. D’Agostino
November 7, 2005
Washington’s conservative and pro-life activists are almost uniformly pleased with the nomination of Judge Samuel Alito as the replacement for retiring Supreme Court Justice Sandra Day O’Connor. Alito has a long record of intelligent, conservative, by-the-text interpretation of the Constitution and law that promises an excellent Supreme Court justice.
Yet a few pro-lifers point to cases in which Alito did not rule in a pro-life direction. I believe their criticism rests on a fundamental misunderstanding of judges’ proper role.
Alito, nicknamed “Scalito” for the similarity between his judicial philosophy and that of current Supreme Court Justice Antonin Scalia, is Catholic and married with two children. He would be the fifth Catholic on the Supreme Court, putting Catholics in the majority on the court for the first time—though one of those Catholics, Justice Anthony Kennedy, issues rulings that have nothing to do with the Catholic faith, the Constitution, or anything other than the opinions of the fashionable elite people that his weak mind finds itself among.
Alito’s mother Rose told the Associated Press, “Of course he’s against abortion.” That’s a positive sign, but he could be one of those personally-opposed-but-type Catholics such as Sen. John Kerry. And some people who know Alito are saying he has such respect for precedent that he will not agree to overturn Roe v. Wade. The same could still be true of new Chief Justice John Roberts.
So how do we know Alito would rule to overturn Roe and other precedents of grave concern to pro-family Americans, such as those severely restricting religious freedom? The fact is, we don’t. As far as is known publicly, Alito has never promised to overturn Roe, and he certainly won’t between now and the Senate vote on his confirmation expected January 20.
Disturbingly, the New York Times reports that Alito told far-left Sen. Dick Durbin (D.-Ill.) that the judicially depraved William Brennan was one of his favorite Supreme Court justices. Let’s hope Alito meant he liked Brennan’s personality.
What we do know is that Alito has had a strong, career-long reputation for strict interpretation of the Constitution and law, and that conservative legal experts agree that he has abided by that philosophy in his 15 years as a federal appeals court judge. He is a former prosecutor who worked for conservative, pro-life President Ronald Reagan. For at least 15 years, he has been a member of the Federalist Society, a conservative-libertarian lawyers’ group that advocates interpreting the Constitution rather than making it up.
It is highly unlikely that Alito would use a secret decoder ring to find a right to abortion embedded in the Constitution as the Supreme Court apparently did in 1973. The danger with Alito, as with Roberts, is that he would accept a long-standing precedent even though it was wrongly decided in the first place. But Alito knows that Supreme Court justices are called upon to reverse precedents from time to time, and everything about his background and philosophy indicates that he will do so.
Alito has made four especially controversial rulings on abortion during his time on the 3rd Circuit Court of Appeals. Alito’s pro-life skeptics note that three went against life. They do not understand that judges are not supposed to make policy decisions, but merely apply the law. This is especially true of lower court judges, who must follow the precedents of higher courts. Alito not only should not have inserted pro-life views into his rulings beyond what the law allows, but could not have successfully done so: In its fanaticism for abortion on demand, the U.S. Supreme Court has long nullified ASAP any pro-life legal efforts anywhere in America. Any clear-cut deviation from Roe v. Wade by Alito or any other judge probably would not have saved any unborn children, and would only have served to expose him as a pro-life judicial activist.
When he thought he could allow restrictions on abortion, Alito did so. He dissented in his appeals court’s 1991 decision in Planned Parenthood v. Casey. He argued that a legal provision requiring women to notify their husbands before obtaining an abortion was not an “undue burden” on the right to abortion under Roe’s definition, especially since a woman who claimed she feared abuse from her husband was exempted from the requirement. This could be called a pro-life decision, but it was one in which Alito tried to stay within the Roe framework.
In Elizabeth Blackwell Health Center for Women v. Knoll (1995), Alito decided that the federal government could override a Pennsylvania law that required women who wanted Medicaid to pay for a rape or incest abortion to report the crime to the police. This case did not revolve around abortion per se, but around the authority of the federal government, which was paying for the abortions in these instances. Alito decided that the feds, who ultimately administer Medicaid and were reimbursing the states for these abortions, had the final say here.
In Alexander v. Whitman (1997), Alito decided that parents cannot sue for damages due to wrongful death of an unborn child as they could for a born child. The unfortunate reality is that unborn children are not persons worthy of protection by the Constitution as the Supreme Court has interpreted the document, so Alito’s decision made sense.
In Planned Parenthood v. Farmer (2000), Alito concurred that New Jersey’s ban on partial-birth abortion violated Supreme Court precedent.
Interestingly, he did not join the court’s majority opinion in this case, even though he agreed with its decision, but wrote his own concurring opinion emphasizing that he agreed with striking down the law only because of Supreme Court precedent striking down a similar Nebraska law. He criticized his court majority’s opinion for trying to justify its decision using methods other than citing Supreme Court precedent. “I do not join Judge Barry’s opinion, which was never necessary and is now obsolete,” wrote Alito. “That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court’s decision in Stenberg v. Carhart, 2000 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.”
Some pro-lifers may not accept these explanations. They want all judges to forbid abortion every time they can. Such action would challenge our ordered, hierarchical legal system and undermine the argument that pro-family, pro-life Americans have been making for decades: That judges should not impose their moral beliefs as the Supreme Court did in Roe v. Wade, but leave such decisions to the other two branches of government.
In the real world, while pro-life jurists are earning their stripes, they have to work within the system—and if every judge made up the law as he saw fit, we would have chaos.
One may object that Alito had a moral responsibility to try to prevent every abortion he could, because every abortion is an intrinsically evil murder, even if the Supreme Court would have immediately overruled him.
Let us note that refraining from the commission of an intrinsic evil is always required, but preventing others from committing evil is not.
Should American Catholic judges refuse to grant divorces? Should they imprison those who publicly spread heresy, which St. Thomas Aquinas argued is a worse sin than murder because it kills the soul? It seems they should not, at least not until the legislature outlaws these acts.
Given what we know, Alito appears a fine choice for the Supreme Court.
Pro-lifers should thank President Bush for his nomination.
Copyright © 2004 HUMAN EVENTS. All Rights Reserved.
American Life League
Judging the Judge – Alito and Abortion
By Judie Brown
November 9, 2005
Sometimes pro-lifers rival the pro-abortion crowd in their hysterical hyperbole. Such is the case regarding President Bush’s Supreme Court nominee, Judge Samuel Alito. While I am not attempting to defend the man or use a crystal ball to read his mind and determine what he might rule in the future, I do believe it is prudent to examine precisely what he did do when it came to cases involving abortion.
This is necessary because many of my frenzied colleagues are positive that the judge is pro-abortion. How else, they ask, could Judge Alito “believe” that the New Jersey partial-birth abortion ban was unconstitutional at the same time that he believed that abortion was unconstitutional? My friends have read the news reports detailing how Alito ruled. They have taken at face value media characterizations that three of his four rulings came down on the pro-abortion side. So, they assume that means that Alito is pro-abortion.
Well, it’s not quite that easy, nor should it be that political. Alito is not running for political office; he is a judge whose job is supposed to consist of interpreting the law, referring to previous Supreme Court decisions and then deciding a particular case based on what his examination reveals.
Let’s take a look at his 2000 decision in the New Jersey partial birth abortion law, from which we can learn a great deal. The New Jersey law came before the judge after the U.S. Supreme Court, on June 28, 2000, had ruled in Stenberg v. Carhart that the Nebraska partial birth abortion law was vague. The court also ruled in that case that because the Nebraska law did not contain a health of the mother exception, it created an undue burden on women.
On its face, this Supreme Court decision was stunningly pro-death. Nobody is going to argue on that point at all. But the fact is the court had ruled on this law; this decision had to be taken into account by Judge Alito and his fellow appellate court judges when evaluating the New Jersey law. Their decision was rendered on August 15, 2000. Upon examination, Judge Alito found the New Jersey law unconstitutional.
Does that necessarily mean that Judge Alito found abortion constitutional? Frankly, I doubt it. And if it does, then I am pro-abortion too! I see the so-called partial birth abortion ban laws as vague, contradictory and wholly inadequate. There isn’t one such proposed law that is really a ban on anything. They all contain a “life of the mother” exception. There isn’t one such proposed law that bans all late term abortion procedures, but rather they are unanimous in singling out one procedure, known medically as the D and X, and then writing into the law a reason to go ahead and kill the baby anyway if the “life of the mother” is threatened.
Well give me a break! Such a law denies the personhood of some babies and does nothing but undermine the cause of restoring personhood. And there you have it.
I am not a nominee to the U.S. Supreme Court, but I find the law immoral.
On the other hand, Alito is a judge and he found the law, consistent with previous court rulings, unconstitutional. He is a judge; he examined the facts the way a judge should, and he rendered a decision. That is all he did. My statement was a personal position based on moral principle. His decision was not. His decision was based on a careful interpretation of the law itself and court precedents.
As pro-lifers we insist that judges stop making up the law as they go along, and simply interpret the Constitution with care. That is what Judge Alito was, in my view, attempting to do.
And that is why, in his 1991 dissenting opinion, regarding the Planned Parenthood v. Casey case, he defended the right of fathers to be consulted before mothers submit to aborting their child. There is nothing in the Constitution that gives a mother a right to kill her baby, but there is recognition of parental authority based on precedent, and so the judge had every reason, as a strict interpreter of the law and judicial precedent, to rule in defense of father’s rights.
Judge Samuel Alito also stated in 1997, while nearly concurring with the Third Circuit holding in Alexander v. Whitman , “I think that the court’s suggestion that there could be ‘human beings’ who are not ‘constitutional persons’ is unfortunate. I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a ‘person’ within the meaning of the 14th Amendment. However, the reference to constitutional non-persons, taken out of context, is capable of misuse.”
Here we have a judge who has examined a case, ruled almost with his fellow judges against the pro-life interest, but made the most salient point I have read in years. Did he have to suggest that viewing some human beings as non-persons was unfortunate? No, he did not. He made the statement precisely because he is aware of what the framers of the Constitution intended.
If that is so, Judge Alito is sane, he is principled, and he is a man who will truly judge a case on its constitutional merits rather than political mumbo-jumbo, a condition which both pro-lifers and pro-aborts suffer from now and then.
I, for one, will wait and see what the judge does once he is seated on the Supreme Court. In the meantime, I do encourage my fellow pro-lifers to assess what it is they want the Supreme Court to do in the coming years.
If we do not want a court to do as the Roe v. Wade/Doe v. Bolton court did by usurping the lawmaking power of 50 states while simultaneously assigning an entire class of human beings to non-personhood, then we should be hoping and praying for wise judges, not Republican mouthpieces. We should be anticipating a future when Supreme Court judges will revisit the Constitution and the Bill of Rights, confident that the words contained therein are permanent guidelines rather than seasonal suggestions.
Will Judge Alito see it that way? Time will tell. So let’s put away our harpoons and our bullhorns, and get down on our knees.
Judie Brown is president and co-founder of American Life League, the nation’s largest Catholic pro-life educational grassroots organization. She is a recognized expert on the sanctity of human life and member of the Pontifical Academy for Life. Mrs. Brown is the author of three books.