New York Times editorial on Judge Alito

In an editorial today titled "Judge Alito's Radical Views," The New York Times reached its unsurprising conclusion that Judge Samuel Alito should not be confirmed as the next associate justice of the Supreme Court.

According to the Times, Alito "has also put forth the outlandish idea that if the president makes a statement when he signs a bill into law, a court interpreting the law should give his intent the same weight it gives to Congress's intent in writing and approving the law." Alito did advocate a policy of Presidents issuing signing statements during the Reagan administration, and it is far from "outlandish."

All three co-equal branches of the federal government have a duty to interpret the Constitution. It seems quite reasonable for a President to provide his own interpretation of the bill and for the courts to weigh his statement accordingly.

The Times also argues: "Judge Alito would also work to reduce Congress's power in other ways. . . . [A]s a government lawyer he insisted Congress did not have the power to protect car buyers from falsified odometers." This assertion is a bold-faced mischaracterization of the record. During an exchange at the hearings that took place between Alito and Senator Diane Feinstein, the Senator pointed to a statement that Alito wrote while at the Office of Legal Counsel, when he recommended that President Reagan veto an odometer fraud bill because he believed it violated the principles of federalism.

Alito explained that the memo was "primarily expressing . . . [not] an interpretation of the scope of Congress's constitutional authority but a recommendation based on the federalism policies of the Reagan administration." Alito never said that Congress did not possess the power to regulate odometers, but rather that it should defer to the states on that issue. The Times's assertion is a gray lie.

The Times also observes: "There is every reason to believe . . . that Judge Alito would quickly vote to overturn Roe v. Wade. So it is hard to see how Senators Lincoln Chaffee, Olympia Snowe and Susan Collins, all Republicans, could square support for Judge Alito with their commitment to abortion rights." It may be that these senators do not believe that mere ideological disagreement on a single issue with an otherwise stellar nominee of impeccable reputation is a sufficient basis for rejecting his nomination. This would square with the understanding of the past 200-plus years of judicial confirmation hearings.

The only thing "hard to see" is how anyone to the right of Chuck Schumer would find the Times editorial persuasive.

Kennedy Will Never Outlive His Legendary Story

Some bloggers routinely accuse Senator Kennedy of being inconsistent. His natural practice is otherwise.

First of all, Senator Kennedy has consistently called Republicans "extremists."

Second, I refer you to Senator Kennedy's alcohol consumption on July 18, 1969: He had
3 Rum and Cokes aboard the Bettawin,
2 Heineken Beers at the Shiretown Inn,
1 Rum and Coke in a hot tub at Lawrence Cottage, and
2 Rum and Cokes at a party later in the evening.

Therefore, with only a minor exception, Kennedy consistently drank Rum and Cokes the night he was out with Mary Jo Kopechne.

Senator Kennedy on Alito's Credibility Problem

In an editorial column appearing in yesterday's Washington Post, Senator Edward Kennedy laid out five areas where Supreme Court nominee Samuel Alito allegedly has a "credibility problem."He begins with a myth commonly propagated by the liberal Democratic Intelligentsia: "Every Supreme Court nominee bears a heavy burden to demonstrate that he or she is committed to the constitutional principles that have been vital in advancing fairness, decency and equal opportunity in our society." If there is to be comity between the three co-equal branches of government, the burden is not on the nominee, but rather on the individual Senators to build a case for rejecting the nominee.

In any event, this "burden" is an unworkable standard. The constitutional principles that would be considered fair, decent, and advancing "equal opportunity" would naturally depend on every Senator's ideological perspective.

According to Kennedy, the Alito Problem Areas are: 1) His 1985 job application for a position with then-Attorney General Ed Meese; 2) His 1985 membership in "Concerned Alumni of Princeton" (CAP) ; 3) Failure to recuse himself in the Vanguard case; 4) His pledge to be absolutely impartial where the government is concerned; and 5) His promise to leave his personal beliefs behind when he became a judge.

Only the Concerned Alumni of Princeton situation really presents a problem for Alito. The noise over the 1985 job application represents liberal Democratic ideology rather than an ethics issue. The White House and Alito botched the handling of the Vanguard situation, making Alito appear disingenuous. However, it does not appear that Alito stood to gain from failing to recuse himself. As for Alito's impartiality and leaving his personal beliefs behind, his fellow jurists have already come forward to settle that score.

However, Alito will need to explain his relationship, if any, with the CAP organization. As Kennedy points out, those critical of CAP back in the mid-1970s included future Senate Majority Leader Bill Frist, who joined a written declaration contending that CAP presented a "distorted and hostile" view of the university. The Frist position provides a benchmark for labeling Alito "outside the mainstream."

An item not widely reported in the mainstream press (which could cause it to be splashed on the front pages during the hearings) , is that (according to Drudge Report) an article written by the editor of the CAP publication Prospect, Frederick Foote, stated: “The facts show that, for whatever reasons, whites today are more intelligent than blacks.” Obviously that statement must be examined in context, but by itself it looks like a nasty racist observation. Was this a typical viewpoint of CAP members? Three years after the article, Alito touted his CAP membership right alongside the Federalist Society in his job application letter.

To the extent that Democrats try to smear Alito using guilt-by-association tactics, they should be admonished. It may be that CAP is being unfairly characterized. But to the extent that some of the organization's members used rhetoric that nonideological Senators would see as troublesome, Alito will need to explain whether he shared the views of those individuals. Surely Senator Frist will be interested in Alito's answers. The Republicans' job will be to keep a tight rein on desperate Democrats.

Committee for Justice Blog

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