Why Alito's the Man for the True Conservative Agenda

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By John Hinderaker and Paul Mirengoff
Sunday, November 6, 2005

For conservatives, it was a teaching moment, and a kind of vindication. Two months ago, millions of Americans watched as Supreme Court nominee John Roberts, billed as a conservative Republican, sat before the Senate Judiciary Committee, smoothly and confidently responding to the grilling of Democratic senators who had hoped to trip him up and expose him as an "outside the mainstream" danger to American jurisprudence. Roberts was smart, good-humored and sensible. The Democrats, very often, were not -- think of Joe Biden's outburst accusing Roberts of providing "misleading" answers.

Roberts kept his cool, showing the public a conservative who not only knew the law, but had the kind of temperament and balance we conservatives want in a Supreme Court justice.

The memory of that moment is one of the reasons why we responded with a collective sigh of relief to Harriet Miers's withdrawal as a Supreme Court nominee, and with unanimous praise for President Bush's selection of Samuel Alito to replace Sandra Day O'Connor on the bench. Once again, we believe we have an opportunity for a teaching moment. Alito, like Roberts, will run rings around the Democratic senators -- even if, this time, the Democrats can remember where the strike zone is.

Most conservatives -- even those who supported her nomination -- were uneasy about Miers's thin qualifications for the court. We know that Roberts is only one of a number of brilliant judicial conservatives whose accomplishments make them highly qualified for the Supreme Court. The Republican talent pool is deep and broad, in a way that it was not when Presidents Richard Nixon and Ronald Reagan were appointing judges.

Beginning with Nixon, most Republican presidential candidates have run against liberal activism on the court and, when elected, have tried to appoint more conservative justices. But the legal profession generally did not share in the populist view that the Warren Court of the day (named for Earl Warren, who served as chief justice from 1953 to 1969) often usurped legislative authority and invented rights. Only now has a new generation of conservative lawyers come of age, many of them influenced by the Federalist Society, which was founded in 1982 to propound the philosophy that "it is the province and duty of the judiciary to say what the law is, not what it should be." These men and women, many of whom are serving on the lower federal courts, now provide a solid roster of candidates for the Supreme Court.

Conservatives were also troubled by the lack of any clear evidence of Miers's judicial philosophy. This was not a matter of imposing a litmus test with respect to Roe v. Wade , or any other issue. In fact, the White House's effort to provide credible evidence that Miers would likely vote to overturn Roe (evidence that didn't exist in the case of Roberts, whom conservatives supported enthusiastically) did not assuage conservative critics. The administration failed to understand that conservative disappointment over the selection of Miers was not cynical and result-oriented, but principled and philosophical. Liberals' complaints about the way conservatives reacted to Miers seem rooted in their disappointment that they now face a mismatch like the one Roberts presented, coupled with their dismay at the prospect of another outstanding conservative justice.

Focusing on what it means to be a "conservative" in this context highlights a basic asymmetry between how the left and the right look at the Supreme Court. Until the past few decades, nominations to the court were generally noncontroversial. The court was not viewed as a political power center, and most people assumed that a judge would affect their lives only if they happened to have a case before him. Thus, as recently as 1962, Justice Byron White was confirmed just 11 days after being nominated by President John F. Kennedy, by a unanimous voice vote in the Senate following a Judiciary Committee hearing that lasted a single morning.

What happened to turn Supreme Court nominations into mini-Armageddons? Liberals increasingly came to view the court as a legislature of last resort, where policies too liberal and too unpopular to be enacted by real legislatures could be mandated by fiat of the court's liberal majority. The right to abortion ( Roe v. Wade , 1973), abolition of the death penalty (temporarily, anyway, in Furman v. Georgia , 1972), and recognition of a right to homosexual sodomy ( Lawrence v. Texas , 2003) are just a few of the more high-profile liberal policies that the court has imposed in recent decades. No conservative doubts that the next item on the liberal constitutional agenda is requiring the states to recognize gay marriage.

Conservatives, on the other hand, are willing to settle for what they can get from Congress and the state legislatures, and (since the New Deal era, at least) have not viewed the court as a vehicle for imposing conservative principles on an unwilling public. Roe , for example, rests on a right to privacy that the court discovered lurking among the penumbras of various constitutional provisions. If conservatives reasoned like liberals, they could try to put the penumbras to work for them. For instance, the federal income tax could be found to violate the right to privacy because it requires taxpayers to open up their private records to the government. But no conservative argues for anything of the sort.

When conservatives say that we want "conservative" judges, or "strict constructionist" or "constitutionalist" judges, what we mean is pretty simple: We want judges who won't make stuff up. We want judges who won't view the Constitution as a mirror in which, at every turn, they see reflected their own opinions and policy preferences. We want judges who will play it straight, read the Constitutional or statutory text (our text, not foreign ones, which the court has relied on in cases like last session's Roper v. Simmons , which held execution of juveniles to be unconstitutional), and apply it as fairly as they can to the individual case before them.

If that were all, liberals would be left with little to say. But there is one thing more: The corollary of the proposition that judges shouldn't make up stuff that isn't in the Constitution or laws is that judges also don't have the discretion to ignore language that is in the Constitution or the laws. Thus, the interstate commerce clause must be recognized as a limitation on Congress's power to regulate the economy, as Judge Roberts noted in the case of the "hapless toad." The Fourteenth Amendment's guarantee of equal protection of the laws can't be ignored every time a public university wants to prefer some applicants over others, based on race. And the Second Amendment's guarantee of the right to keep and bear arms can't be treated as if it got repealed somewhere along the way.

It is in connection with such issues that liberals often argue that conservative judges are really just as "activist" as liberal judges, if not more so. This is based on the observation that conservatives sometimes hold statutes unconstitutional because, for example, they exceed the constitutional limits on federal power. But again, liberals overlook a fundamental asymmetry: It is activist to import something into the Constitution that is not written there, based on one's own policy preferences. It is not activist to apply and enforce the Constitution as it is written. That, on the contrary, is the duty of every state and federal judge.

This is the context in which conservatives have hailed Alito as a more solidly conservative, or reliably conservative, choice than Harriet Miers or past choices such as O'Connor and David Souter. Not because Alito, or we, have a secret agenda to invalidate legislation that conflicts with conservative beliefs. Rather, because Alito has a track record of deciding cases based on the facts and the law, not upon his own personal opinions and preferences. And because he has demonstrated the courage required to read the Constitution without glossing over the terms that modern liberals find inconvenient -- as, for example, in his opinion in United States v. Rybar , which Democrats are trying to twist into an endorsement of private ownership of machine guns. Alito, noting that machine gun ownership was already regulated under state law in all of the states making up the Third Circuit, simply followed Supreme Court precedent in recognizing that the commerce clause is not a blank check that negates the concept of limited federal government.

The Miers-Alito moment shows that conservatives prefer demonstrated excellence to its absence, openness to stealth, and adherence to constitutional text to the promise of any particular result. Which makes it amusing to hear liberals, disgruntled at the replacement of a thinly qualified stealth candidate with a nominee who has a 15-year judicial track record and an intellectual capacity they don't dispute, accusing conservatives of cynicism.

Authors' e-mail : powerlinefeedback@gmail.com

John Hinderaker and Paul Mirengoff write for the Power Line blog and practice law in Minneapolis and Washington, respectively.


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