Let's be honest for a moment. The nomination of Judge Samuel Alito to the Supreme Court is about one thing: ideology. It is understandable that many people dislike the idea of the nomination of a person whose judicial and Constitutional philosophy is different from their own. However, I am reminded of the remarks of a current professor of mine, who said something to the tune of, "when it comes to a fundamental question, make up your mind and stick with it." The question at the heart of the Alito nomination is the latitude a president should be allowed when making judicial nominations, especially as it relates to the Supreme Court.
I have spent the last few weeks thinking about this issue, and I have come to my own personal decision: as long as a potential nominee has the legal acumen to serve on the Court and if that judge is somewhere in the judicial mainstream, they should be confirmed. The same people who are currently criticizing the Alito nomination are the same people who would be jumping for joy if this was John Kerry nominating the next John Paul Stevens.
Now that I have espoused my theory, it is time to test it on Judge Alito. Judge Alito is no Harriet Miers; he has extensive legal experience, both as an attorney as a judge. Unlike current Supreme Court Justice Clarence Thomas, Alito was rated "well qualified" by the American Bar Association (Justice Thomas was only "qualified"). The second part of my test is where others will begin to disagree with me. The Washington Post stated that Alito's record "is that of a thoughtful conservative, not a raging ideologue. He pays careful attention to the record and doesn't reach for the political outcomes he desires." That sounds like the description of a man deserving of confirmation. A quick survey of some of Alito's decisions justifies that claim, and while he may lack the style of some of his future Supreme Court compatriots, he exercises an amount of humility and restraint laudable in a system too often crowded with activists on both sides of the aisle.
Since by this point you know where I stand, I will get at my original reason for writing this column: my anger at the hypocrisy of Democrats and the Democratic Party. I understand that the nature of our political system leads to the minority lashing out at the majority, but I do not have to like it. Newsflash to Democrats: John Kerry is not President. George Bush is not going to nominate a liberal jurist to the Supreme Court. He is doing exactly what he said he was going to do during the 2004 Presidential Campaign. As the proverb goes, "to the victor go the spoils." As president, Bill Clinton nominated Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court, both of whom were and are considered fairly liberal. They passed by a combined margin of 184-16.
By all accounts, it appears Samuel Alito is a mainstream judicial conservative. He is not as far to the right as Antonin Scalia (who passed by a 98-0 margin), nor is he as moderate as Sandra Day O'Connor. But he is, despite the claims of others, in the mainstream. As the winner of the Presidential election, George W. Bush holds the decision of whom to nominate. If the Democratic Party has a problem with the way the Court is moving, they need to win national elections and get in a position to change that problem. The Democrats have a problem with Samuel Alito because they see no hope that he is another "stealth nominee." Of those considered to be in the Court's "liberal wing," two Justices, John Paul Stevens and David Souter, were nominated and confirmed under Republican Presidents. Some Democrats (particularly Harry Reid) reacted positively to the Harriet Miers nomination, possibly hoping that Miers would become the next David Souter, or at least the next Sandra Day O'Connor. Miers' withdrawal shows us that the system of confirmation weeds out those who should not serve on the Court.
George Bush Jr. is not about to repeat the mistake of his father, who nominated David Souter. Samuel Alito may be conservative but he is not unqualified or an ideologue. He is not Janice Rogers Brown, the United States Court of Appeals judge who was rated "not qualified" by the State Bar of California. Neither is he Priscilla Owen, the federal appellate court judge whom Attorney General Alberto Gonzales frequently criticized for her extreme conservatism while they served on the Texas Supreme Court together.
I am by no means a Republican, nor am I someone who could be described as conservative. However, I see no reason why Justice Alito should not be confirmed as an Associate Justice of the Supreme Court. While I would like to know where Alito stands on specific issues, he did not need to answer many of the specific questions posed to him at the confirmation hearings. Ruth Bader Ginsburg followed the same course, as did John Roberts. Alito lacks Roberts' natural charisma, but that is no reason to oppose his confirmation.
I will leave you with one last thought. We should all stay consistent in our philosophy, regardless of who is in power. For the liberals who say Samuel Alito is out of the judicial mainstream, I will wait for you to call for a more moderate jurist the next time a Democratic President makes this monumental decision. I will hold fast in my belief that the President has the right to nominate whomever he likes, as long as that person is well qualified and within the judicial mainstream. To imply that a conservative judicial philosophy is wrong makes a mockery of the Supreme Court and the debate it has inspired for the last two centuries. Samuel Alito should and will be confirmed, and only time will tell what his confirmation means for the Court.
