Consequences of a Justice Alito

Alito could have big consequences for the country, but he’s hardly radical.

Darren Bernard

As soon as The New York Times, American Civil Liberties Union and other fringe leftists grow tired of attacking Christmas this holiday season, President George W. Bush’s U.S. Supreme Court nominee will be waiting in the wings.

Step aside, Santa ” Samuel Alito is coming to town.

The Alito confirmation hearings are set to begin Jan. 9, and about the only people excited for them are bloodletting Democrats and die-hard conservatives. Along with abortion-rights groups and much of the mainstream media, Democrats started swinging the day Alito was nominated. The right is ecstatic that the nominee may shift the court on a number of issues like family-leave laws, the death penalty and even abortion.

Alito has earned the nickname “Scalito,” a reference to conservative Justice Antonin Scalia; and for good reason. During his 15-year tenure, Alito has split from the generally moderate 3rd U.S. Circuit Court of Appeals on a number of occasions in abortion and employment and disability rights cases, sometimes drawing surprisingly harsh criticism from his fellow justices.

Even so, Alito has typically sided with the 3rd Circuit, including in religious and civil rights cases. The best conclusion to draw from Alito’s record is that he is indeed conservative, but he is by no means extreme. The recent conclusion of Sen. Teddy Kennedy’s office ” namely that, “When it comes down to it, (Alito’s) on the wrong side of civil rights” ” is little more than a prelude to the arm-flailing senior Democrats like Sen. Chuck Schumer and Sen. Dianne Feinstein will be doing come January.

In fact, in opinion after opinion, Alito proved to be anything but hostile toward civil rights. Writing for court in 1999, Alito deemed it unconstitutional for a police department to force two Sunni Muslims to shave their beards, because doing so would violate their First Amendment rights. In a 1998 case, writing the majority opinion for a split court, Alito argued that police did not have probable cause for pulling over and searching a black man after a police dispatcher described two robbery suspects as black males driving a black sports car.

I guess it must have been these cases that made Sen. John Kerry ask, “Has the right wing now forced a weakened president to nominate a divisive justice in the mold of Antonin Scalia?”

Presuming Alito is given the OK next year, (a reasonable assumption considering the Republican Congress) the only cases that will immediately matter are those in which Justice Sandra Day O’Connor casts the decisive vote. And just as Democrats forewarn, that could mean an exceptionally different Supreme Court, one that could create serious political consequences for both parties.

One of the most noteworthy consequences of a Justice Alito-court would be a drastic shift in rulings on the constitutionality of religious displays. This summer, the U.S. Supreme Court issued split decisions on Ten Commandments displays in Kentucky and Texas. O’Connor sided with the secular arm of the court in both cases, but she cast the swing vote in the Kentucky case, in which she argued that the display of the Decalogue on courthouse grounds constitutes an establishment of religion. “It is true that many Americans find the Commandments in accord with their personal beliefs,” O’Connor wrote in a concurring opinion, “but we do not count heads before enforcing the First Amendment.”

True, but American voters do take note when the federal government snubs their religious beliefs, and they usually look sympathetically to the Republican Party when it happens. Unfortunately, Alito never had a Ten Commandments case come before his court, but he has ruled that the display of religious symbols is constitutional if they are situated near secular figures. Last year, he wrote a majority opinion arguing that private religious groups must be allowed the same access to after-school events as secular groups. Alito’s record was enough for the two Kentucky counties to vote to continue defending their Decalogue displays.

Edge: Republicans.

On the other hand, Alito’s record on abortion, which is neither equivocal nor meek as some have suggested, might play to Democrats. In a statement to the White House in 1985, Alito bluntly wrote that he is “particularly proud” of his contributions to cases in which he argued “that the Constitution does not protect a right to an abortion.” In the few pro-abortion opinions he wrote on the 3rd Circuit, Alito was repeatedly forced to decisions with direct and immediate precedent from the Supreme Court.

It all sounds great to those of us on the right, but dumping Roe v. Wade could spell political disaster for Bush and the Republicans. Although most Americans favor putting limits on the time frame and circumstances of abortions, a recent Associated Press poll shows that only 31 percent of national adults want a Supreme Court nominee who would overturn the landmark 1973 case.

Edge: Democrats.

The political consequences of the Alito hearings are a lot for Democrats and the Republicans to sort out over the next month. But alas, it will be Bush’s poor, reasonable nominee stuck between all of it.

So, merry Christmas Justice Alito. And have a happy new year.

Darren Bernard welcomes comments at [email protected]