At last, the main event. Judge Samuel Alito, the third Bush Administration nominee to fill Justice Sandra Day O’Connor’s seat, forces the debate that both Bush and the Senate have tried so mightily to avoid: whether the Supreme Court should shift decisively and radically to the right. In urgent need of public distraction from the Libby indictment and in obeisance to ultraconservatives in rebellion against the hapless Harriet Miers, Bush abandoned any pretense of bipartisan consultation and reached into the conservative judicial patronage machine’s talent pool.
Now social conservatives are cheering, primarily because they perceive Alito to be firmly antiabortion. As an appellate judge dissenting from the reaffirmation of Roe v. Wade in Planned Parenthood of Southeastern Pennsylvania v. Casey, he argued that Pennsylvania had the right to require a woman seeking an abortion to notify her husband, a provision that Justice O’Connor and the Supreme Court majority found a noxious burden on women. His Casey dissent is most remarkable for endorsing what amounts to a man’s property rights over his wife’s reproductive choices; Alito dismissed as legally irrelevant evidence that spousal notification laws might lead to an increase in wife beating. That dissent may provide an inkling of where he stands on Roe (although Alito privately assured Senator Arlen Specter that he accepts the right of sexual privacy, upon which Roe is based), but it is shocking as well for Alito’s antediluvian view of women’s rights.
Alito’s extreme view of the Constitution is evident on a wide array of issues. He was part of an appellate court majority in one ruling severely curtailing citizens’ access to courts under the Clean Water Act. In an antitrust case involving makers of transparent tape, he took the side of large corporations against smaller competitors. In several sexual and racial discrimination cases he would have made it much more difficult for victims to sue and get damages. Most ominously, given the Court’s current uneasy balance, Alito has consistently stood to the right of O’Connor on key civil rights and civil liberties cases. Many of his majority opinions, as well as positions he took in dissents, were overturned by Supreme Court majorities in which O’Connor cast a decisive vote.
Democrats cannot finesse a confrontation over Alito’s consistent right-wing commitments. They cannot claim, as many did with Miers, that he is unqualified or lacks a sufficient record. They should certainly paint a vivid picture of his destabilizing judicial radicalism and hold their caucus to disciplined opposition. But they must also demonstrate concretely the ways a right-wing Court would be devastating to the vast majority of Americans. Alito’s confirmation would dangerously enhance corporate power, restrict the legislative powers of Congress and further erode our already diminished civil liberties. His nomination is not only a test for Democrats; it will also be a test of the courage and conviction of prochoice Republican moderates like Arlen Specter and Susan Collins, and of whether the GOP will be in perpetual thrall to antiabortion zealots. The threat of an antichoice Court majority now presents an impossible dilemma for any GOP senator with presidential ambitions: Republicans want to keep evangelical activists inside the tent, but they also know that a threat to abortion rights would alarm the public. Judge Alito’s long record sends the Senate headlong into that buzz saw. The question is not whether Alito is an extreme conservative–but whether there is still a Senate constituency for moderation on the Supreme Court.