Don't Run From the Truth

By Bruce Fein
Sunday, December 18, 2005

Misreading Robert H. Bork's 1987 shipwreck, the White House is bizarrely instructing its Supreme Court nominees to disown their prior attacks on wayward constitutional thinking from the high court. During his confirmation hearing for the post of chief justice, John Roberts dismissed tomes of the brilliant, caustic critiques of past constitutional capers that he authored under President Ronald Reagan, calling them merely an attorney's advice to a client.

According to his testimony, his intellectual sneers at the creative constitutional theories that summoned into being a generalized right to privacy ( Roe v. Wade in 1973) and exiled all religious acknowledgements from public life ( Wallace v. Jaffree , which banned the moment of silence in public schools in 1985) did not represent his views as an independent thinker. Roberts had joined the Reagan administration not as a Reaganite eager to alter the course of constitutional thought, he suggested, but as an opportunist who would have been equally inclined to serve under President Jimmy Carter.

Now, Samuel Alito Jr. is similarly insisting that he served in the Reagan administration as an ambitious apparatchik uncommitted to conservative principles. According to senators whose statements have been denied by neither the White House nor the nominee, Alito has distanced himself from his own writings assailing Roe and a cluster of dogmas dear to Democrats -- for example, racial preferences and welfare rights. Those writings, Alito is now saying, were crafted to curry favor with his superiors but did not reflect the authentic Alito.

What's going on here? The Bush administration argues, unpersuasively, that this intellectual disingenuousness is necessary to mollify Senate Democrats who would oppose a nominee too nakedly critical of their sacred cows, or to avert the type of sound-bite demagoguery that destroyed Bork. But in fact, disingenuousness is likely to heighten the risk of a confirmation debacle. And by running away from debate, it also blunts conservatives' paramount strategic objective of changing constitutional orthodoxies.

Senators naturally resent being treated like dupes, and if they are treated that way too often, they could turn on a nominee. The explanations offered by Roberts and Alito, tacitly denying their Reaganite heritage, are fatuous on their face, akin to Thomas Jefferson's disavowing the Declaration of Independence to win a seat on the British Privy Council, or Justice Abe Fortas's disputing that he was a New Dealer despite having raced to serve under President Franklin D. Roosevelt. What worked once for Roberts may not fly so readily a second time.

Bush nominated Alito and Roberts because their past writings substantially echoed the constitutional philosophy of Justice Antonin Scalia. Neither man would have been chosen if he had informed the White House that his gladiatorial attacks on the rationale of Roe had been contrived merely to gain favor with the Reagan administration. This is not to say that nominees can never repudiate earlier constitutional opinions. As Abraham Lincoln observed, a man who does not grow wiser by the day is a fool. But neither Roberts nor Alito has asserted that his Reaganite legal writings contained intellectual deficiencies that were superceded by sober second thoughts.

Equivocating about the past makes a nominee less suitable for the court because it puts the intellectual honesty of his answers regarding his current views under a cloud. Confidence in the court's intellectual integrity is key to getting the public to comply voluntarily with its decrees, in contrast to needing the National Guard to enforce desegregation in Little Rock, Ark., public schools in 1957.

Bush's embrace of his nominees' lack of candor regarding their Reagan-era paper trails might be defensible if it were necessary for confirmation. But it isn't. The circumstances that led to Bork's rejection no longer apply. In 1987, the Senate was in the hands of Democrats. It is now run by Republicans, whose margin jumped to 55-45 in the 2004 elections, when the issue of judicial appointments figured prominently in Senate races.

Additionally, the nation is more ideologically conservative today than it was in 1987, when Democrats controlled Congress and the media were overwhelmingly liberal. Then, there was no Rush Limbaugh or Fox News Channel or Weekly Standard or Matt Drudge or Internet bloggers to counter the tendentious reporting and editorializing of the television networks, National Public Radio, the New York Times and CNN. Compared with 1987, the public is more troubled by the possibility of airbrush-artist-like constitutional decisions -- for example, recognizing a right to same-sex marriage and prohibiting "under God" in the Pledge of Allegiance. Congress has unanimously denounced the latter, and approximately a dozen states have amended their constitutions by popular referendums to deny same-sex matrimonies.

Finally, conservatives were unprepared to respond to the liberal polemics aimed at Bork. Reagan was vacationing in California while Sen. Edward M. Kennedy was falsely maligning Bork as being callous about back-alley abortions and complacent about Jim Crow. Today, in contrast, conservative organizations like the Committee for Justice or Progress for America are flush with funds, talent and media access to promote Alito's credentials and to answer extremist liberal detractors like People for the American Way or Alliance for Justice.

The tenderness with which Roberts and Alito have treated Roe, by recanting or softening their past critiques, is especially baffling. Scholars of all philosophical persuasions -- for example, Yale's moderate-conservative Alexander Bickel, Harvard's liberal John Ely and Archibald Cox, and the University of Chicago's conservative Richard Epstein -- have decried the decision's feeble reasoning. In 1973, Justice Harry Blackmun extracted a constitutional right to an abortion from penumbras and emanations of the Bill of Rights, the views of the American Medical Association, the American Public Health Association and the American Bar Association, and the tautology of the Ninth Amendment: that rights not surrendered are preserved. Even Justice Ruth Bader Ginsburg, a star graduate of the American Civil Liberties Union, has voiced doubts about Roe's reasoning.

Alito could openly attack Roe as wretched constitutional law but remain silent on whether the 32-year-old precedent should be overturned without risking a Bork-like firestorm from Democrats. In any event, Roe's rationale must be publicly discredited if a conservative philosophy that honors the intent of the Founding Fathers is to become orthodox and dominate constitutional law.

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