In many ways, President Bush's new Supreme Court pick Samuel Alito is the opposite of Harriet Miers.
Let's hope that one of those ways isn't “confirmability.”
The New York Times made “to bork” a verb in honor of the successful campaign to demonize and destroy Ronald Reagan's nomination of Judge Robert Bork to the Supreme Court in 1987. Harriet Miers may well go down as the first Supreme Court nominee who was widely regarded as confirmable but was borked by her own party and by the President's biggest supporters.
Pundits, legislators and GOP donors who have rallied around Bush for years denounced her as unqualified, as a woman with no paper trail, as an almost nepotistic candidate who was only nominated because of a long friendship with Bush.
Miers had obvious political benefits for Bush, however. She was promoted by Senate Democratic leader Harry Reid, greatly increasing her chances of passing a vote in the Senate. Those who know her best praised her pro-life credentials most.
Judge Alito, unlike Miers, has a long record and little or no support among Democrats to go along with his pro-life reputation.
Also, unlike the evangelical Christian Miers, he's Catholic. If Alito is confirmed, for the first time ever, the Supreme Court would have a Catholic majority — 5 out of 9.
That's fine by us. But it remains to be seen what the reaction will be by those who objected to John Roberts’ nomination because he would be the fourth Catholic on the court.
The first President Bush put Alito on the federal bench 15 years ago. Since then, his opinions have been compared to those of another Italian Catholic jurist, Antonin Scalia.
Like Scalia, Alito is from New Jersey and, like Scalia, he seems to be a judge who believes judges should judge, not legislate, from the bench. In a democracy, making laws is the job of the peoples’ representatives, not unelected judges.
In May, The Newark Star-Ledger quoted Alito saying, “Most of the labels people use to talk about judges, and the way judges decide [cases] aren't too descriptive. … Judges should be judges. They shouldn't be legislators, they shouldn't be administrators.”
What pro-lifers mainly want to know is: Will Alito be the kind of justice who will overturn Roe v. Wade? And the truth is, despite Alito's reputation as a conservative and the vocal opposition of abortion groups, we have no way of knowing. Two cases will be the focus of much discussion.
Pro-lifers will have questions about why Alito joined the majority of those on his court in striking down New Jersey's partial-birth abortion ban in 2000. At the time, Alito explained that New Jersey's law didn't meet the U.S. Supreme Court's requirement for such a ban to include an exception if a mother's health was endangered.
Pro-lifers will be more heartened by his role on the federal court that struck down a Pennsylvania abortion law in Planned Parenthood v. Casey. It's this that gives Alito the distinction of being a rare U.S. Supreme Court nominee who has actually been involved as a judge in a high-profile U.S. Supreme Court abortion case. Alito was the only member of the lower court to dissent.
But ironically, the reason he dissented was because he thought the decision misapplied an abortion test that originated with Sandra Day O’Connor, the U.S. Supreme Court justice he is now nominated to replace.
He also took the occasion of that decision to reiterate the proper roles of judges:
“We have no authority to overrule that legislative judgment even if we deem it ‘unwise’ or worse. Whether the legislature's approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards.”
The decision was then appealed to the Supreme Court, where the Supreme Court used it to further harden its pro-abortion stance. O’Connor voted to strike the pro-life law, and disagreed with Alito's analysis. Chief Justice William Rehnquist quoted from Alito's opinion in his own dissent.
What will all this mean about what kind of Supreme Court Justice Alito will be? We can't possibly know. But we're already witnessing what kind of nominee he will be. And that's a lightning-rod one.
As he faces fierce opposition in the weeks ahead, we pray that the debate will clarify the issues involved, and move our country a step closer to ending the blight of abortion.
- November 6-12, 2005