Last Thoughts on Samuel Alito

So now the Judiciary Committee hearings are over, I’ve read the ACLU report, I’ve heard the ABA recommendation, heard about some private input from professors at Seton Hall and read a wide range of quotes from people who know or have worked with Alito.

In other words I can’t procrastinate any more. I started with simple relief that Miers was off the board and in general I’ve been wavering near neutral because, like Jesus on the show The Book of Daniel, I’m no fortune teller.

Nothing in the hearings has led me to significantly change my conclusions based upon the ACLU report and a sporadic review of Alito’s decisions but they have evolved a little.

Alito personally believes that Roe v. Wade is bad law

This is a change from has “strong personal aversions to” Roe v. Wade. He doesn’t like it but he will respect the piled up precedent on the right to privacy. It’s going to take a long paring away of precedent before it's possible to consider overturning the central principle of Roe and even then it may not be a done deal.

More likely is that we will see the definition of "undue burden" narrow until anything short of an outright ban may be allowed. Other concerns center around a possible weakening of the principle that there must always be exceptions when the woman's health is at stake plus an unhealthy possibility that the court may, rather than throw out laws in total, be selective and only toss out those portions that are objectionable.

The last possibility is really scary. Right now legislatures have to at least consider whether a provision will cause a law to be tossed out. But if only selected portions are overruled, then there is really no incentive for legislatures to show restraint. They can include all sorts of restrictions including those they may suspect, or even know, are unconstitutional in the hope that some of them will stick.

Alito will favor Freedom of Religious Expression over the Establishment Clause when there is a conflict.

I didn’t see anything to change my opinion here and I’m still concerned that this is a dangerous area for experimentation. I’m also slightly concerned that Alito leans toward the idea that government actions which aid all religions are ok. This is sort of a fuzzy area because it’s pretty easy to identify a secular benefit to actions with that sort of broad benefit and often this is the real objective.

Alito has a low opinion of affirmative action.

Nothing to really change my opinion here other than I don’t think this extends beyond a reasonable disagreement between honest men. In other words, I don’t think he’s a bigot.

Alito will tend to favor employers in discrimination or harassment suits.

No question about this one. No change here based upon the hearings.

Alito will tend to favor the government in criminal and death penalty cases.

If anything the hearings have strengthened this impression significantly. I’d say that he’s predisposed to favor the government and the burden of proof is always going to be on the other side.

I’ll tell you one thing; the guy is good at stepping around land mines. Or perhaps it was just that he’s so much more intelligent than most of the Senators on the committee.

A common mistake in the questioning was including multiple topics in a single question. This allowed Alito to simply address the safest topic. For instance, when Senator Kohl asked him about agreement or disagreement with some expressed opinions of Judge Bork, Alito could focus mostly on the safest of the subjects which was “one man, one vote.”

Kohl also missed an opportunity when Alito said “Most of the things that you just mentioned are points on which I would disagree with him.”

Only “most?” That means you agree with Bork on at least one. Considering that the two opinions of Bork’s that Alito didn’t specifically repudiate were that there was no right of procreation and that Roe v. Wade was an unconstitutional decision, I would have loved to have known which one. Would you like me to hazard a guess? Unfortunately Kohl blew it.

Oh well, Alito will get confirmed and despite what is clearly a distaste for Roe we’ll have to see how things go. Let’s keep in mind that both Roberts AND Alito would have to concur.

How far will the court shift to the right? It’s hard to tell. While neither Roberts nor Alito is as moderate as O’Conner, I doubt that either is as reactionary as Rheinquist. So maybe, just maybe, the shift will be less than some folks hope and others fear. We shall see.

It’s time to practice again. Everybody now, LEAN RIGHT!