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January 23, 2006
It's All About Ideology For The Left

Today's New York Times editorial implores the Senate to vote against the confirmation of Judge Alito to the Supreme Court once debate starts this week in the Senate. Like the rest of those who have come out in opposition to his confirmation, the only basis for their rejection is ideological, transforming the process into an election rather than an appointment:

If Judge Samuel Alito Jr.'s confirmation hearings lacked drama, apart from his wife's bizarrely over-covered crying jag, it is because they confirmed the obvious. Judge Alito is exactly the kind of legal thinker President Bush wants on the Supreme Court. He has a radically broad view of the president's power, and a radically narrow view of Congress's power. He has long argued that the Constitution does not protect abortion rights. He wants to reduce the rights and liberties of ordinary Americans, and has a history of tilting the scales of justice against the little guy.

As senators prepare to vote on the nomination, they should ask themselves only one question: will replacing Sandra Day O'Connor with Judge Alito be a step forward for the nation, or a step backward? Instead of Justice O'Connor's pragmatic centrism, which has kept American law on a steady and well-respected path, Judge Alito is likely to bring a movement conservative's approach to his role and to the Constitution.

Either one has to believe that Supreme Court justices have to be vetted for ideology or that the process should be non-political. In both cases, the New York Times gets it wrong. If ideology is to remain outside of the process, then the only question for Judge Alito's confirmation is whether he has the competence to work on the Supreme Court. The ABA found him to have the highest degree of competence -- not the most conservative of groups either, one should remember -- as well as the highest degree of ethical practice. He has spent 15 years of fine public service on the federal appeals bench and almost a decade of work before that as a federal prosecutor, serving the people of the United States and enforcing the law. Outside of ideology, Judge Alito has the most experience in appellate law for a nominee in 70 years.

If ideology is to be considered, then the New York Times has it even more wrong. It asks whether a conservative should replace a centrist on the court. If ideology has suddenly become a qualifier, then one has to look at who nominates the candidate. The President won election twice, and at least during the last election, Supreme Court nominations clearly were a major issue. He has the mandate of the election to pick the ideological bent of the replacements for any opening on the Court; there is no quota system for leftists, centrists, and conservatives, nor have Presidents been particularly apt at guessing which categories their nominees would fill in the long run anyway. Bush's two elections show that the people want a more conservative court -- so as long as the Times considers ideology a basis for selection, then a conservative judge should be the most acceptable as a manifestation of the demand of the people.

I doubt that the Times asked whether the Court would be poorly served by replacing conservative Byron White with Ruth Bader Ginsburg, for that matter. One easily detects the stench of hypocrisy in the Times' editorial approach today.

The reason why the opposition to Alito now rests on ideology is because his critics failed to gin up any other rationale for opposing his confirmation. The Times fails to mention that Mrs. Alito's "crying jag" came as a result of a disgraceful and disgusting attempt to smear her husband with a number of unsubstantiated allegations of bigotry and misogyny to shield Senators from having to use the ideological argument at all, a neo-McCarthyism in which the Gray Lady's editorial board indulged itself enthusiastically and with raptuous delight. The failure of those attempts makes this editorial not only possible, but the Paper of Record's last refuge.

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Posted by Ed Morrissey at January 23, 2006 5:48 AM

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