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A Little Alito Goes A Long Way

Shawn Bannon Posted by Shawn Bannon

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Leaders among the Senate Democrats are scrambling today to determine whether or not they can sustain a filibuster of Judge Samuel Alito’s nomination to the Supreme Court. Immune to the embarrassment they should be feeling after the shameful acts of Senators Kennedy, Leahy, Biden and others during the Alito confirmation hearings, Senators Kerry (hoping to resurrect his presidential aspirations for 2008), Clinton (knowing that Kerry will be nipping at her heels until she trounces him in New Hampshire and Iowa) and Reid (because he doesn’t know what the Senate Minority Leader is supposed to do if he isn’t attempting to sabotage the president’s agenda) are leading the effort to derail the nomination by way of a filibuster. They’ve decided that, since they can’t put up enough points on the score board, like spoiled children they’ll simply throw themselves down in the middle of the playing field and pitch a fit to have the game cancelled.

Republicans knew this was coming more than a year ago. Democrats — knocked for losses in yet another round of presidential and congressional elections — were threatening to filibuster a number of the president’s judicial nominees for the federal courts. They were using the filibuster in a way in which it had not been intended and pressed the nation to the brink of a Constitutional crisis wherein the minority party in the Senate sought to exert its will even in opposition to and at the expense of the public. When Senate Majority Leader Bill Frist announced that he and other Republican leaders were considering rules changes to disallow use of the filibuster in this way, Senate Democrats made clear the extent to which their antics would continue. They proudly declared that, if Republicans changed the rules regarding judicial nominations, they would tie the Senate in procedural knots, attempting to bring all legislative action to a grinding halt. In the end, a small group of well-intended but misguided Republican senators negotiated a compromise with the Democrats that saw four of the president’s nominees in question named to the bench. The issue was no longer at a boil, but the fire below the pot still burned.

The Gang of 14, those Democrats and Republicans who negotiated that deal in the summer of 2005, assured Americans that the crisis had been averted and that the matter would only rear up again under extraordinary circumstances — only if the president nominated someone so incredibly extreme in his ideology as to threaten the existence of the judiciary as a fair arbiter of the law. Today, as Senators Kerry, Kennedy, Reid and Clinton attempt to whip votes to sustain a filibuster, we know that was never what the Democrats had in mind.

Judge Alito-s record is that of a man whose personal views lean right. He is openly conservative. And he probably would personally like to see a number of societal changes in line with his conservative perspective. But he is also a strict believer in a limited judiciary that is beholden to the rule of law rather than personal agendas or ideologies. Despite the charges and insinuations of Democrats during the confirmation hearings — some of them misinformed, others simply malicious — he has declared that he would bring no agenda to the Supreme Court other than to do that which the law requires. And he drew a clear distinction between his roles as an advocate before he joined the Appeals Court in 1990 and his role as a judge since.

“The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand,” he said. “But a judge can’t think that way. A judge can’t have any preferred outcome in any particular case.”

Democrats, though, attacked him for what they called “extreme” conservative views. They have attempted to stir fear among women with claims that confirmation of Judge Alito will set back women’s rights by two generations or more. Senator Diane Feinstein said that, “If one is pro-choice in this day and age, in this structure, one can’t vote for Judge Alito.”

But Alito’s record on abortion actually bears out everything he has said about the separation of his personal opinions from his obligations on the bench.

In 1991, Judge Alito dissented in a ruling by the 3rd Circuit that struck down Pennsylvania’s law requiring women to notify their husbands if they planned to get an abortion. But in 2000, in a New Jersey case, Alito agreed with other judges who found a law banning late-term abortions unconstitutional. That’s the record of a man who can clearly separate his own views from his responsibility to decide a case within the parameters of existing law.

Interestingly, there has been no dispute of Judge Alito’s academic or professional qualifications. The American Bar Association has called him well-qualified for the appointment, and he has been praised by countless former law clerks and colleagues, including current and former 3rd Circuit judges, who testified before the Senate Judiciary Committee. Democrats have instead attacked his character and ideological positions.

They’ve suggested that he is a bigot, a charge that set the tone for the Democrats during the hearings and which has since backfired in humiliating fashion on Senator Kennedy.

He doesn’t stand up enough for “the little guy,” they argued, to which Judge Alito responded that the role of a judge is limited to interpreting the Constitution and laws faithfully and fairly. In other words, if the law is on the side of “the little guy,” then “the little guy” would win, but the Courts should not be predisposed to ruling for “the little guy.” That’s as it should be but also runs counter to the fundamental thinking of Democrats on the far left of their party.

But Judge Alito shows too much deference to presidential authority, Democrats charge. In my last piece, I took the administration to task for its forays across the acceptable boundaries of power that surround the oval office, so I understand the Dems’ concerns. But Judge Alito has been clear about his conviction on this issue as well.

“The president has to follow the Constitution and the laws,” he said when asked about executive powers during the confirmation hearings. “In fact, one of the most solemn responsibilities of the president — and it’s set out expressly in the Constitution — is that the president is to take care that the laws are faithfully executed. And that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States.”

Pressed about what Democrats are calling “the president’s domestic spying” program, Alito said that, “If someone has been the subject of illegal law enforcement activities, they should have a day in court. And that’s what the courts are there for — to protect the rights of individuals against the government or anyone else who violates their rights. And they [the courts] have to be absolutely independent and treat everybody equally.” That sounds curiously like a pro-little guy — or, at least, pro-justice — position to me.

So why are Democrat leaders in the Senate up in arms over the likelihood that Judge Alito will be confirmed as a Supreme Court justice this week? As I see it, there are two reasons.

The first is that they really do simply want to be the fly in President Bush’s ointment. They want to thwart him at every turn — to throw every possible obstacle they can in front of him to make the administration and congressional Republicans appear weak. From John Kerry on down, the Democrats ran in 2004 on a “180-Degrees from Bush” platform. They ripped the administration for what they saw as a lack of accomplishment on critical issues, but even prominent Democratic strategists James Carville and Paul Begala admitted after the elections that the party of JFK has no unifying plan of its own today — no clear set of values that align with the majority of Americans. President Bush may not have achieved all that he would have liked during his first term, but when they entered the polls, voters still found themselves identifying with his core beliefs. Since the 2004 elections, instead of looking inward and reinventing themselves, Democratic leaders have intensified their opposition to the president and actually moved further to the left.

The one exception may be Hillary Clinton, whose efforts to take more of a centrist stance on national security issues have yet to take a firm hold and are betrayed by her alignment with Senators Kerry, Kennedy and Reid on the Alito nomination, where she fears alienating women if she doesn’t jump on the “he’ll take away your reproductive rights” bandwagon.

And that brings us to the second reason Democrats on the far left are opposing this nomination. They actually want a court full of liberal activists, and they put the issue of abortion ahead of all else. They fear that Judge Alito’s replacement of Justice Sandra Day O’Connor, who represents to many the ideological center of the Court, will be a blow to their cause.

There is little doubt that confirmation of Judge Alito will change the ideological balance of the Court. Republicans say slightly rather than monumentally; in fact, Judge Alito has talked about the Constitution as a living document, which is a phrase often used by liberals. He perhaps thinks the Court should be better insulated from public opinion and less subject to his own than did O’Connor. But he certainly does not represent an extraordinary threat to our system of jurisprudence. To the contrary, his commitment to the rule of law and his record of service on the bench should be comforting to every American who still believes in the greatness of the Constitution.

Democrats like Kerry, Kennedy, Reid and Clinton — defeatists and obstructionists, all — should be ashamed of their efforts to impugn his character and defeat his nomination simply to squeeze the most political juice out of any confrontation they can manufacture with the administration. Thankfully, it appears that enough senators on their side of the aisle have the good sense to vote in favor of confirming Judge Alito to overcome any sad attempt at a filibuster these “leaders” of the party may try to mount.

Shawn Bannon is a professional speechwriter and editorialist. A graduate of Carnegie Mellon University, he has written for and served as a communications consultant to a number of civic, business and community leaders. He can be reached by e-mailing

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  1. 4 Responses to “A Little Alito Goes A Long Way”

  2. By Scott Bannon | Reply to article

    Shawn, a well written piece here. I disagree with the assertion that Alito will prove to be a “pure law” justice. Like many who oppose him I believe he’ll use his position to guide national ‘taste’ the way conservatives in Congress strive to legislate it, but I certainly do agree that some Democrats and radical liberals have gone too far in their cries and tactics to block his nomination.

    I also think you may be a little too accepting of the 04 election results as proof that the President’s core beliefs were in line with the majority. Many people I know who pulled the lever for Bush admit to having done so based on a single issue, terror.

    They wanted a leader who wouldn’t hesitate to knee-jerk into action against threats and viewed Kerry as ‘too calculating’ to fit that role. Right or wrong, for some voters that was the lone deciding factor.

    Finally, I think it’s inaccurate to label the Democrats who are fighting to oppose Alito’s confirmation “defeatists and obstructionists” if their actions are in line with their constituent’s desires and within their respective powers.

    When Republicans made middle-of-the-night moves to thwart court rulings and prevent the removal of life support measures for Terri Schiavo, I argued that they were overstepping their authorities–but understood and even respected that they were acting in line with the wishes of their base supporters.

  3. By Shawn Bannon | Reply to article


    Thanks for the feedback. I’d be interested in knowing what you base your belief upon that a Justice Alito would look to guide national “taste.” Where, in his record on the bench, do you see that he’s attempted to do that? Or, where in his testimony before the Senate Judiciary Committee, do you find an indication that this is the kind of Justice he’ll be? If this is just a hunch, that’s fine. But if your belief in this regard is based on some kind of foundation, I’d be interested in hearing about it.

    Your point about terror and my point about the president’s core values align, I think, and what I wrote would seem to hold up even in the light of your response. Did voters — in the millions — pick Bush over Kerry because their positions matched the president’s 100 percent of the time? No, certainly not. But they chose to re-elect him over Kerry despite the Democrats’ litany of claims that the administration had taken the country in completely the wrong direction in the first term. The voters who chose Bush in 2004 did so because they’re values and their goals aligned with his in a way that they did not with Democratic platform. I don’t think they thought Kerry was too calculating; they thought he was too likely to waffle on issues of national security and to do the politically expedient thing. Strong leadership is an important value with which voters who chose Bush over Kerry identified.

    We’ll have to agree to disagree about whether or not the leadership of the Democratic party is made up of defeatists and obstructionists. (It is.)

    And regarding the Terry Schiavo case, I was absolutely, 100 percent against the intrusion of the federal government in the matter. It was wrong — an ill-advised effort to gain political points with the religious right — and it reflected poorly on those in my party who were so willing to interject themselves in that case.

  4. By Scott Bannon | Reply to article

    Shawn, I’m happy to point out a few specific points in Alito’s record which cause me to pause with concern over his confirmation and lead me to conclude that he’s likely to rule from a position beyond the law on some issues from the highest bench in the land.

    In the case of “Planned Parenthood of Southeastern Pennsylvania v. Casey”; Alito strayed from currently defined law which accepts abortion as a procedure between patient and doctor, and as such deserving of the same privacy standards as any other patient-doctor procedures, to support a more restrictive PA provision which would require women to notify their husbands before obtaining an abortion. Alito’s colleagues on the Third Circuit and the Supreme Court majority disagreed and overturned the provision.

    Regardless of personal feelings on the issue at hand, it’s very clear that the law didn’t allow for such a provision, yet Alito would have. To me, this is an obvious example of guiding the law over interpreting it.

    He also has a fairly consistent record of dissent with the Third Circuit on cases of discrimination, especially within the workforce. A few examples (which I’ll refrain from fully describing here) are “Sheridan v. E.I.DuPont de Nemours and Co.” and “Riley v. Taylor”. In addition, the case of “Bray v. Marriott Hotels” where the court majority found that Alito was imposing an evidentiary burden on victims of employment discrimination that would have ‘eviscerated’ legal protections under the Civil Rights Act.

    In “Doe v. Groody”, again in dissent, Alito would have upheld the strip search of a mother and her ten-year old daughter by authorities armed with a warrant that failed to name either of them.

    This is, in my opinion, a clear over-reaching and abuse of powers by authorities in the execution of warrants, and even (then) fellow Judge Michael Chertoff criticized the position as “threatening to turn the constitution’s search warrant requirement into little more than a rubber stamp.”

    There are other official positions which Alito has taken during his 15 years on the U.S. Circuit Court of Appeals for the 3rd Circuit that cause me to pause as well, but since I only wanted to display that my concerns are based on record and not a gut-feeling this should suffice? If not I will be happy to expand further.

    I certainly don’t know what type of Justice Alito will prove to be, he may well become a strict and fair interpreter of the law.

    However, I’m concerned by his past record that he will continue to lean in directions that correspond more with personal beliefs over strict interpretations of the law. Thus, guiding national taste and providing a great disservice to the American people.

    In fairness and contrast, I feel the same with regards to Justices who do the same while leaning left as well.

  5. By Shawn Bannon | Reply to article

    Scott, I appreciate the thorough response. I disagree with your interpretation of some of the rulings. For example, Judge Alito’s position in the Pennsylvania case concerned the rights of the father, holding that the state law did not stand counter to the federal law in the same way that the other judges reviewing the case believed. That’s a very defensible position.

    Regarding Doe v. Groody, as Alito explained in his confirmation hearings, his dissent was not because he necessarily felt the mother and young girl should have been strip searched but rather that ruling against law enforcement in this case would set precedent that would unduly hamper future investigations.

    During the confirmation hearings, Democrats brought up many of the same rulings you mentioned regarding discrimination cases in which Alito came down in favor of the organizations charged with discrimination. And before the line of questioning had ended, Alito’s supporters were circulating a list of other discrimination cases in which the judge had found in favor of the plaintiffs.

    It becomes a case of where you get your information — who you choose to listen to and what you choose to believe. I don’t imagine that you’d ever support the nomination of a judge like Samuel Alito. But the premise of my post is less a defense of the man than it is a condemnation of the tactics used by Democratic leaders to derail his nomination.

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