Legal Gambling

Confirming a justice to the Supreme Court is a crapshoot with serious consequences. Senators can question and all of us can parse a nominee’s background and record but if a qualified candidate, widely regarded as a nice guy, says “Yes, I believe in the rule of law.” how can I say he won’t be a good justice? Samuel Alito may become a justice whose legacy will be greater than his conservative advocacy now suggests. Or he could be another Clarence Thomas, who acknowledged a right to privacy during confirmation hearings and has ruled against that right as a justice. Alito has the intellect and experience to be a good justice but I question that he is the right person to fill Sandra Day O’Connor’s seat.

A great justice will protect the civil liberties and rights of all Americans. Someone who recognizes that the US was designed to restrain the executive that had all too much potential (and history) for usurping power. O’Connor played this role when she wrote that “...war is not a blank check for executive power.” Nothing in Alito’s record suggests that he would ever write such words. O’Connor balanced conservative ideals and action to protect rights inherent in the US Constitution; she skeptically reviewed assertions of public authority over individual actions but recognized also that in some cases, evidence and law supported those assertions. Alito, in contrast, has accepted assertions easily. O’Connor was pragmatic and independent. Alito has been pragmatic in the service of his Federalist Society ideals. Ideals which he and his supporters say do not fully reflect his beliefs..

The disavowals trouble me. Why should I believe them? What do the disavowals say about the man or the depths of his beliefs? No, I will take Alito on his record, the words he wrote as a lawyer and a judge. He IS a conservative activist who has performed as appropriate to his opportunities. In the Reagan-Meese Justice Department he wrote memos for his clients. As a circuit judge, he has defrerred to the executive over Congress repeatedly. So don’t go telling me he didn’t believe the ideas he has supported for three decades. He WILL be a conservative justice.

But so was O’Connor. The question now is whether or not this crusader can look beyond his ideology and preferences to the law and legal tradition. Can Alito become another O’Connor? More like another Rehnquist, I think.

Like I said, it’s a crapshoot. But when a qualified, experienced professional says he will respect the law, when is it reasonable to say you don’t believe him. When you can make the case, that’s when. Michael at AMERICAblog makes a strong case against Alito. If the Democratic party is to mean anything to the future of this country, the Democrats must also make that case.