Unacceptably Mainstream

January 23, 2006

Liberal fringe groups, politicians and editorial writers have been coming out of the woodwork urging the Senate to reject the nomination of Samuel Alito to the Supreme Court because, they say, he is outside the mainstream.

The New York Times characterizes Judge Alito’s views as “radical.” In assessing its claim, we should know whether the paper is talking about his judicial or political philosophy. If the Times accepted the court’s role as an interpreter, not maker, of laws, Alito’s political views would be irrelevant.

But they matter enormously to liberals. They want judges who are political and judicial liberals — that is, judges who will bastardize the Constitution to impose the liberal policy agenda. Judge Alito fails both tests.

Though presumably a political conservative, he would not legislate a conservative policy agenda from the bench. But this provides little comfort to liberals because if Alito, in dispassionately interpreting the Constitution, would roll back any of the court’s liberal, activist decisions, he is a menace.

The possibility that he could vote to overturn Roe vs. Wade makes liberals apoplectic. Since he won’t promise to misread the Constitution to contain a federal right to privacy, he is an extremist.

Isn’t it interesting that liberals don’t even bother any longer to defend Roe as good law? Even they know the Supreme Court manufactured out of whole cloth the constitutional right to privacy.

Instead, they have developed a latter-day affinity for stare decisis, or “established” precedent. But isn’t it odd to hear zealous proponents of a living, breathing Constitution demanding that we rigidly adhere to bad law because it is now institutionally enshrined?

The truth is, they couldn’t care less about precedent unless it conveniently supports the result they prefer. Someday, their loyalty to Roe may be put to an interesting test if one of the major bases upon which it legitimizes abortion — the unviability of the “fetus” — is rendered obsolete, as some argue it is already, by medical and technological advancements.

Even if Alito were a conservative judicial activist, which he clearly is not, he still wouldn’t be as extreme as the liberal activist judges already sitting on the court who have no reasonable justification other than blind adherence to flawed precedent to preserve the federal right to privacy. The pro-Roe judges not only have no constitutional basis to uphold Roe, but the effect of their rulings is to deprive the people of their sovereignty on the issue. If liberals are so darn sure pro-abortionists occupy the mainstream, they should have nothing to fear in returning the issue to the states to be decided democratically.

Alito is also tarred as an extremist because, in the words of the Times, “he has a radically narrow view of Congress’s power.” Their proof? “He argued that Congress exceeded its authority when it passed a law banning machine guns.” Translation: He had the audacity to rule that the Constitution means what it says in giving Congress the power to regulate interstate, not intrastate, commerce. Liberals, who want to confiscate our guns, call Alito “extreme” for treading on their “right” to trample the Second Amendment and expand the Commerce Clause beyond recognition.

Most preposterously, liberals contend Alito has “a radically broad view of the president’s power.” Unless you agree with them that a renegade Supreme Court should continue to twist the Constitution to give Congress unfettered, extra-constitutional power over interstate commerce, you are an extremist.

Unless you believe the executive branch cannot order that terrorist detainees be held indefinitely in time of war as enemy combatants, but that they should be pampered with the full panoply of civil rights accorded U.S. citizens, you want to make the president a dictator.

Unless you believe President Bush is operating as Big Brother in conducting warrantless eavesdropping only on Al Qaeda communications and only for the purpose of national security and not law enforcement, you are an extremist. One wonders precisely what expectation of privacy any American-residing knucklehead could possibly have in conversing with an international terrorist.

The Times also warns us, ominously, that Judge Alito’s gavel would always favor the privileged over the disadvantaged. “Women, racial minorities, the elderly and workers who come to court seeking justice should expect little sympathy.” In addition to the utter absurdity of this charge, would someone please get word to the Times that the court is not supposed to be a dispenser of sympathy?

On second thought, don’t bother because they don’t care; they have no respect for the proper role the judiciary is assigned under the Constitution. They view it as a third policy-making branch to impose the liberal agenda. And unless you agree, you’re a dangerous extremist, far outside the mainstream.