The Magazine

Alito, Then and Now

Dec 5, 2005, Vol. 11, No. 12 • By TERRY EASTLAND, FOR THE EDITORS
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In the essay, Alito clearly was an advocate--in his own behalf. And the picture of himself that he presented to Meese and the White House office of presidential personnel was that of not merely a "life-long registered Republican" but a political conservative ("I am and always have been") and a legal conservative, someone who shared the administration's views and was proud to be serving under President Reagan. By his account, Alito traveled the same path many conservative intellectuals of his generation did, drawing inspiration (at the age of 14) from the Goldwater campaign, reading Buckley and National Review, even batting out articles he sent to NR and the American Spectator. And concerning the law, like so many legal conservatives of his generation, he found himself questioning decisions of the Warren Court and discovering the work of arguably its greatest critic, Alex Bickel, a Yale Law professor who died young, at age 49, a few months before Alito gained his J.D. from Yale. Like other critics of the Warren Court, including some liberals, Alito identified its problematic legacy--usurpation of authority that the Constitution commits to the elective branches of government. The classic example of such usurpation, of course, was the early Burger Court decision in Roe v. Wade, which, denying the elective branches the authority to determine abortion policy, mandated a pro-abortion rights regime. It was Roe that the Reagan administration, in a case that Alito worked on, asked the Court to overrule.

Senate Democrats almost certain to oppose Alito anyway are seizing upon his job-application essay to argue, in effect, that someone with his biography shouldn't be confirmed. Sen. Edward Kennedy has gone so far as to condemn Alito for having found something to like about the Goldwater campaign. Sen. Joseph Biden has declared that Alito's disagreement as a college student with the Warren Court's reapportionment decisions may constitute sufficient reason for a filibuster. Senator Patrick Leahy has complained that Alito was "an aggressive participant in an ideological movement"--meaning the conservative one headed up by Ronald Reagan. None of the Senate Democrats nor their allies have yet maintained that it was a crime for Alito to have read Buckley or Bickel or NR or to have tried to write for NR or TAS (we'd like to think The Weekly Standard would have been favored with an Alito submission had we been around those many moons ago--and we would have accepted it, too); nor have they yet condemned Alito for his membership in a just-begun Federalist Society or his contributions to conservative Republican candidates. It is not too early, however, to make the obvious point that being a political conservative is hardly disqualifying for the Supreme Court. Nor is having worked as a political appointee at a high level in the Reagan Justice Department.

That said, Alito's essay presents questions the nominee must deal with: among them, whether he still takes issue with Warren Court decisions involving criminal procedure, the Establishment Clause, and reapportionment; whether he continues to regard racial and ethnic quotas as illegal; and, to be sure, whether he still thinks the Constitution doesn't protect a right to abortion. Alito will be asked such questions during his hearings, and already senators are posing some in private sessions with the nominee. According to second-hand accounts of those visits, Alito has adopted the strategy of playing down his essay by saying he was an advocate applying for a job then and that he has held a very different job, as a judge, for the past 15 years, and that in his years as a judge his legal views have changed some, such that he has "great respect for precedent." Of course it is true that judging is different from advocating, and you would expect a lower-court judge to develop a very high regard for Supreme Court precedents, since he is bound to follow them. But it remains the case that the views Alito stated in his 1985 essay were plainly, and proudly, his own, and for that reason they cannot so easily be set aside. The better strategy for Alito is the more credible one of straightforwardly discussing the substance of what he wrote.