Alito’s Opponents Unwittingly Make Case For Him

January 5, 2006

As Senate confirmation hearings for Supreme Court nominee Samuel Alito approach, we are getting a closer glimpse at the mindset of the various special-interest groups joining to oppose the nomination. Through their public statements they have exposed themselves, not Judge Alito, as extremist.

Supporters of Judge Alito and other Constitution-respecting nominees should quit playing defense and start underscoring the liberty-threatening nature of the judicial anarchy essentially espoused by radical feminists and others opposing these nominees.

Since the failed nomination of Judge Robert Bork, these groups have grown increasingly emboldened, holding themselves out as the sacred guardians of constitutional rights against “reactionary” conservatives who would take us back to the days of ‘back-alley abortions’ and virtual slavery for women and minorities.

Behind the misleading rhetoric, we discover these groups are selective defenders of the Constitution. Their judicial philosophy demonstrates no real appreciation for the overarching principle of limited government the Constitution was crafted to guarantee. They exhibit no understanding of such pivotal constitutional doctrines as the separation of powers and federalism that transform the idea of limited government from theory to reality.

Not only is their advocacy of “rights” highly selective, but their understanding of freedom itself is recklessly superficial. They are rarely motivated to protect the structural integrity of the Constitution and are purely results oriented.

If a particular congressional law mandates an outcome they deem desirable, they don’t care whether it is beyond Congress’s constitutional authority to enact. Conversely, if Congress passes a law entirely within its constitutional authority but whose result they oppose, they demand the court act as a super-legislature and overrule Congress, though legislating is outside the court’s constitutional scope.

For them, the end justifies the means, whether the “means” involves Congress perverting the Commerce Clause or trampling on states’ rights, or the Courts usurping legislative or executive authority. Indeed, these fanatical groups can talk all they want about the horrors of a Judge Alito, but they are the ones whom lovers of liberty and the Constitution should fear.

In the weeks leading up to the confirmation hearings, these groups have been circulating talking-points memos and organizing rallies and marches to mobilize public opinion against Alito.

To get a taste of their penchant for hyperbole and hysteria, visit the Web sites of the Feminist Majority Foundation, People for the American Way, the National Organization for Women, the Alliance for Justice, the Leadership Conference on Civil Rights, Freedom Winter ’06 or Young People Against Alito.

When you examine their most common objections to Judge Alito, you will find they are usually centered on the very things we should applaud in a judge. What they regard as denigrations of certain rights, we should understand as stewardship of the Constitution itself, without which we would have no rights. Examples abound:

When Judge Alito seeks to vindicate the core constitutional principle of equal protection in opposing affirmative action and quotas in college admissions programs, they mischaracterize it as his desire “to restrict African-Americans’ admissions” to colleges. When Alito says Congress has no constitutional authority under the Interstate Commerce Clause to regulate intrastate activities involving machine guns, he is castigated as an advocate for “obviously dangerous” weapons.

When Alito voted to strike down a school district’s euphemistically dubbed “anti-harassment” policy as a cleverly crafted ruse to restrict the free speech of certain politically incorrect students, such as those Christians who criticized homosexual behavior, they depicted him not as a champion of First Amendment freedoms but a homophobic bigot.

When he voted to uphold a police strip-search of a woman and her 10-year-old daughter as constitutionally reasonable under the circumstances (to prevent the hiding of illegal drugs) and based on a “common-sense and realistic” reading of the search warrant and its supporting affidavit, they cast him as a chauvinistic thief of privacy rights. When he had the audacity to write a Third Circuit opinion that Congress didn’t have the power to require state governments to comply with the Family and Medical Leave Act, they tarred him as insensitive to employees rather than a laudable defender of state sovereignty.

Think about it. Alito’s staunchest opponents are against him for precisely the reasons they should be supporting him: He would dispassionately interpret the Constitution. They don’t want justices to be fair-minded, objective, apolitical or sober practitioners of judicial restraint. They prefer confirmed activists who will twist or ignore the Constitution at will so long as certain policy results are achieved. It is their judicial philosophy, not Judge Alito’s, that ought to be opposed with intensity.