The Democrats and Judge Alito - New York Times

The Democrats and Judge Alito - New York TimesNovember 13, 2005
Editorial
The Democrats and Judge Alito

Judge Samuel Alito has been working hard to win over moderate Democratic senators. But just as it would be irresponsible to reject his nomination to the Supreme Court without giving him a full hearing, it is unwise to embrace it - or rule out the possibility of a filibuster - until more is known.

The Alito nomination is a defining moment for the country, and for the Democratic Party. Given the sharp divisions on the court, the next justice could decide the scope of reproductive freedom, civil rights and civil liberties, and environmental and workplace protections that Americans will live with for years. Although many questions remain to be answered, there is reason to believe that Judge Alito could do significant damage to values Democrats have long stood for.

Conservative Republicans demonstrated that they have a clear idea of what they want for the Supreme Court. They proved that once again with their insurrection against Harriet Miers. Now Democratic senators have to show their supporters that they are no less willing to fight for their vision.

Judge Alito has tried to reassure Democratic senators by talking about his respect for Supreme Court precedents, including Roe v. Wade. It would be unwise to put too much stock in such reassurances. Even justices who value precedent, as most do, sometimes overturn existing case law with which they disagree. It should give Democrats pause that after Judge Alito's meetings with senators, both sworn opponents of Roe and fervent supporters have emerged reassured.

Even if Judge Alito does stand by important precedents, there is still reason for concern. Under Chief Justice William Rehnquist, the Supreme Court perfected the art of reaffirming precedents in areas like criminal procedure while poking enough holes in them to render them almost unrecognizable. Judge Alito showed as a federal appeals court judge - when he voted to uphold a Pennsylvania law requiring women to inform their husbands before getting an abortion - that abortion rights can be severely diminished even within the framework of Roe. The same thing could be true in other areas.

One group that clearly does not believe that Judge Alito will be a slave to existing Supreme Court precedents is the far right. Many of the same groups and individuals who waged a fierce campaign against Ms. Miers, President Bush's previous nominee for this seat, appear to be lining up in support of Judge Alito. Senator Sam Brownback, a Kansas Republican who strongly opposes abortion, and other rights the court has recognized over the years, declared after meeting with Judge Alito, "This is the type of nominee I've been asking for."

The confirmation hearings, which are scheduled to start in early January, should shed light on whether he is in the mainstream of the law or outside it. Democrats should put a heavy burden on Judge Alito to show that he would not do damage to the Constitution, and to Americans' cherished rights.

The Alito nomination comes at a critical moment for the Democratic Party. With President Bush's poll numbers plummeting, Democrats are finding a new optimism about their chances in 2006 and 2008. But to capitalize on the Republicans' weakness, the party needs to show that it has an alternative vision for the country. As the Democrats refine their message for next year's elections, the first thing they need to be able to say to the American people is that they did not sit by idly while the far right took over the Supreme Court and began dismantling fundamental rights and freedoms.