Those seeking to paint Judge Samuel A. Alito Jr. as a scary, back-alley-abortion-promoting, patriarchy-pushing, theocracy-loving, civil-rights-hating, machine-gun-legalizing, right-wing extremist got a little ammunition this week. But not much.
The ammunition is Alito’s I-am-a-Reagan-conservative essay in a 1985 job application that was made public on November 14. "Far outside the legal mainstream," sniffed a predictably Pavlovian New York Times editorial.
Bosh, blatherskite, and flapdoodle.
Sure, Alito seems a bit to the right of the current Supreme Court’s somewhat left-of-center majority (and of yours truly, too). But his now-famous 1985 application, considered together with his 300 closely reasoned judicial opinions over the past 15 years, places him much closer to the center of American public opinion than his critics are. He also seems closer to the center than does Clinton-appointed Justice Ruth Bader Ginsburg (confirmed by 96-3), and quite comparable to Chief Justice John Roberts (78-22).
Here’s what Alito wrote 20 years ago, in applying to then-Attorney General Edwin Meese for a promotion from his civil service job as an assistant solicitor general to a politically appointed position:
"I am and always have been a conservative…. I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values."
Not so scary. But now come what critics call the smoking guns:
"I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate…. In college, I [strongly disagreed] with Warren Court decisions, particularly in the areas of criminal procedure, the establishment clause, and reapportionment…. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."
These are certainly the words of a Reagan conservative. But are they outside the mainstream? Somebody should tell The New York Times that Reagan won 49 states in 1984. And that in exit polls, many more Americans identify themselves as conservatives (34 percent in 2004) than as liberals (21 percent).
Generalities aside, let’s locate Alito, and Ginsburg, on the spectrum of public opinion on three of the hottest issues: abortion, racial preferences, and religion.
If Alito is outside the mainstream on abortion, then so are the very large percentage of constitutional scholars — including many pro-choice liberals — who agree that Roe was a judicial usurpation of legislative authority with no basis in the Constitution. Even Ginsburg herself wrote (also in 1985) that Roe was "heavy-handed judicial intervention [that] was difficult to justify and appears to have provoked, not resolved, conflict."
To be sure, most Americans disagree with Alito’s 1985 view that Roe should be overruled. But this is partly because many do not understand that the Roe abortion right is virtually absolute, and many are under the false impression that overruling Roe would make abortion illegal.
Polls show clearly that wide majorities of Americans want more restrictions on abortion — especially late abortions — than Roe allows. Take the now-defunct Pennsylvania law requiring married women to notify their husbands before having abortions, unless they fear a violent response. And indulge, for the sake of argument, critics’ cynical assumption that Alito’s vote to uphold this provision was driven by his political views — contrary to the explanation in Alito’s 1991 dissent that he was seeking only to follow binding Supreme Court precedents.
Outside the mainstream? Hardly. While The New York Times calls spousal-notice laws "extreme limits on abortion," some 70 percent of poll respondents favor them.
In fact, the Supreme Court itself is well to the left of center on abortion, although not as far left as The New York Times. This has been evidenced not only by the justices’ 5-4 decision in 1992 striking down the Pennsylvania spousal-notice law, but also by their 5-4 decision (Stenberg v. Carhart) in 2000 striking down a Nebraska law against the grisly procedure that opponents call "partial-birth" abortion. Justices Ginsburg and Sandra Day O’Connor were in the Stenberg majority — which was, again, at odds with 70 percent of the public.
My guess is that both Alito and Roberts may vote to uphold the 2003 congressional ban on partial-birth abortion, and thus to overrule Stenberg. But I still doubt that either will vote to overrule Roe. The Court’s repeated reaffirmations of Roe’s essential holding, along with other developments, have changed the equation since 1985.
Indeed, Harvard Law School’s Charles Fried, who as solicitor general (and Alito’s boss) urged the Court in 1985 to overrule Roe, says that doing so now would bring "an enormous disruption." Fried guesses that Alito would agree. And Alito has ruled for the pro-choice side in three of his four cases involving abortion-related issues.
This is not to deny the possibility that Alito, Roberts, or both might seek to overrule Roe, or the more remote possibility that they might get a fifth vote from a future appointee. But even if Roe falls, legal abortions will remain widely available. Most states would continue to protect fairly broad access to abortion, both for their own residents and for visitors.
As for racial preferences, Alito’s 1985 assertion that "racial and ethnic quotas should not be allowed" places him squarely in the middle of public opinion — unlike Ginsburg, who has voted to uphold wholesale use of quota-like preferences in college admissions, contracting, and other areas.
Polls show overwhelming public opposition to quotas. And neutrally worded polls that avoid the word "quota" show that more than two-thirds of Americans oppose racial preferences.
Some critics fault Alito’s 1996 vote to uphold a white teacher’s racial-discrimination lawsuit against the Piscataway, N.J., school board, for laying her off ahead of a black teacher, in the name of "diversity."
Alito’s response should be: Go ahead. Make my day. Let’s discuss the legality of race-based layoffs. This one was so indefensible that racial-preference champions — facing almost certain defeat in the Supreme Court — paid the white teacher a large sum to drop her lawsuit before the justices could rule.
Under the hopeful headline "Critics See Ammunition in Alito’s Rights Record," The Washington Post’s Amy Goldstein and Jo Becker described this as a case in which Alito "took a limited view of the law" — an odd way to describe enforcing the law.
The closest that Alito came to being "outside the mainstream" in his 1985 application was his whack at unspecified Warren Court decisions on "criminal procedure, the establishment clause, and reapportionment."
It is clear, however, that Warren Court decisions in these areas were subjected to trenchant criticism by mainstream scholars, and some were broadly unpopular at the time. These include decisions expanding defendants’ rights, barring school prayer, and striking down aid to religious schools.
It is also clear that any moves by Alito toward greater governmental accommodation of religion would put him closer to the center of public opinion than Ginsburg is. Some of the liberal precedents that she has supported have been plausibly interpreted by a federal appeals court (among others) as barring all governmental "endorsements" of religion, including even the words "under God" in the Pledge of Allegiance. The appeals court ruling provoked a unanimous Senate vote of condemnation in 2002. Is the entire Senate outside the mainstream?
As for Alito’s unexplained 1985 objection to reapportionment decisions, perhaps he had read the widely revered Justice John Marshall Harlan’s demonstration in a 1964 dissent that "one person, one vote" was a judicial creation with no basis in the Constitution’s text or history.
In any event, the one-person, one-vote rule has long been settled law. Alito is not about to unsettle it.
All things considered, I respectfully submit that The Washington Post’s usually incisive Ruth Marcus had it backwards when she suggested in a recent column that Alito is farther to the right of center than Ginsburg is to the left.
The list of other Alito statements distorted by critics is long. You will hear of him letting cops "strip-search" a 10-year-old girl. And upholding removal of black people from juries. And gutting the Family and Medical Leave Act. And seeking to legalize machine guns.
You will hear critics scoffing at the virtually unanimous praise of Alito by people who know him well — liberals, moderates, and conservatives. You will hear him called a "right-wing suck-up" and (by The New York Times again) an "ideologue."
But you will know better. And Alito will be confirmed.