No Question Alito Is Activist Judge

by Joe Conason

Assessing the philosophy, character and fitness of Samuel Alito to sit on the U.S. Supreme Court will require more than eliciting vague and unresponsive answers about whether he will remain faithful to Roe v. Wade, the precedent that protects abortion rights in America. It means that senators should take the time to closely examine his voluminous record on the appellate bench, and ignore the Bush administration's drive to confirm Judge Alito before the new year.

Fortunately, the Senate no longer seems quite so inclined to kneel before Mr. Bush, whose power and popularity are now so plainly in decline. Members of both parties seem to be regaining the capacity for independent thought and action that allows them to fulfill their duty and rise above their reputation as a Republican rubber stamp.

As senators analyze the Alito record, they must also discard the cliches of right-wing propaganda that create illusions and obscure reality.

The president has often said that he opposes "judicial activists" who would legislate from the bench and overturn the popular will. Echoing him, conservatives regularly scold liberals for seeking to win in court what they cannot achieve in Congress. According to this argument, the nomination of Judge Alito is meant to guard against such undemocratic jurisprudence.

Actually, the judge from New Jersey is among the most persistent "activists" currently serving on any federal court -- and his confirmation to the Supreme Court might well endanger precedents dating back seven decades. Judge Alito has few qualms about overturning the will of the majority, as expressed by Congress, if that serves the enternched power he has so consistently upheld.

As The New York Times reported on Nov. 5, this is a judge who rules in favor of big business so reflexively that even corporate lobbyists publicly describe him as predictable. "He has come down on a host of issues in a way that the business community would prefer," said Robin Conrad, senior vice president of the National Chamber Litigation Center, the legal arm of the U.S. Chamber of Commerce. "This is not a guy who is going to go off the reservation."

Is that a polite way of saying he's in the tank?

Before the Senate concludes its deliberations on the Alito nomination next January, every American should understand that what is at stake will go far beyond the right to privacy and women's reproductive freedom, important as those issues are. Aspects of his judicial philosophy may simply sound nutty, including his universally rejected opinion that Congress cannot prohibit citizens from owning machine guns.

But what he seems to desire is a return to the social and economic arrangements of a century ago, when federal judges often sided with economic elites to block legislation that threatened their interests.

In his argument against the machine-gun ban, Judge Alito appealed to the same narrow interpretation of the Constitution's commerce clause that was used long ago to strike down laws designed to protect labor, consumers, children, women, minorities and the natural environment from the forces of unregulated capitalism. Over the past seven decades, for reasons both humane and pragmatic, the courts have turned away from that cramped perspective and recognized that Congress must have broad latitude to govern the nation as a whole.

On the far right, however, would-be judicial activists have cherished the idea that the Constitution permits them to dispose of any law that conflicts with their ideology. To them, the elevation of Judge Alito evidently represents an opportunity to reverse the progress of decades by judicial fiat (the same sin they attribute to liberals).

Reviving the jurisprudence of the Gilded Age would not only cripple the capacity of Congress to govern the nation as a whole, but would drastically diminish congressional authority. If for no better reason than their own self-interest, that aspect of Judge Alito's philosophy ought to engage the interest of the senators whose job is to interrogate him.

Unlike Justice Clarence Thomas, who ascended to the high court without revealing his extremism, Judge Alito is a known quantity. Republican flacks and other propagandists quickly seconded his nomination with claims that he is well within the "conservative mainstream," whatever that means. Close analysis of his opinions is likely to reveal that he is in fact to the right of Justice Antonin Scalia, with whom he is so often paired as "Scalito."

That scarcely qualifies him as mainstream -- and may qualify him instead for the ultimate distinction of a filibuster.