Don't Flyspeck Sam Alito
It is a source of immense relief to see that the nomination of Samuel Alito to the Supreme Court seems to be attracting less press attention with the passage of time. I regard that as a healthy matter because, truth is, there really is very little that need be said in defense of this nomination. So I will speak once, and perhaps thereafter hold my peace.
One key question with nominations is how the Senate should evaluate them. The usual response is to get copies of all his opinions and publications which are then pored over, usually by ideological opponents of the nomination, in the hope of finding some nugget that will inspire senators to vote against the nominee.
I think that this form of flyspecking is the wrong way to go about things. The better approach is to engage in a little bit of free riding in what should be a three stage process.
Stage one, look at the resume and get a sense of overall quality. Thirty seconds later it is clear that Samuel Alito is as strong in this regard as Harriet Miers was weak. So the proponents of the nomination rest their case.
Stage two, the opponents (on whose labors I will happily free-ride) then scrutinize the record, and list their objections to the nomination. In Alito’s case, their meager harvest has three points. He is soft on separation of church and state; he is a bit too pro-state on the federalism issue; and he supported against constitutional challenge a requirement that women in some cases notify their husbands before they have an abortion.
That list looks to me to be sufficiently thin that it really does not need much of a reply But that said here is a short answer on each of these points.
- The charge on church and state is that Alito has given a narrow reading to Employment Division v. Smith (1990) which held that the proper way to read the establishment and free exercise clauses was to impose a general rule that allowed all formally neutral regulations to pass muster. I think that this was one of Justice Scalia’s worst opinions because it ignore the obvious disparate impact that these rules can have on individuals with certain religious practices—including smoking peyote for religious purposes only. That decision has been condemned from both left and right because of its failure to make reasonable accommodations for religious practices. When Alito works to narrow its scope, so much the better. Score one for Sam.
- The charge on commerce clause is that he has read United States v. Lopez (1995) to strike down a ban on assault rifles. And for this we should worry? Lopez itself represented a (much too) modest retrenchment of the Supreme Court’s Commerce Clause jurisprudence that treated any and all activities within the scope of federal power, in ways that mock the original constitutional design. There are no” changed circumstances” that justify this extension in Wickard. So long as the arteries of commerce are left open, Congress does not have to control which goods are shipped in commerce or why. Alito’s decision, alas, did not roll back Wickard. It sought to make sense of Lopez. One can oppose the contraction of Congressional power on any one of a number of dubious grounds. But score two for Sam. Would that he would go further!
- The last charge is that Alito voted to uphold a provision that required a woman to give notice to her husband before having an abortion. That vote has been denounced as “outrageous” in the New York Times, which does its best to undermine its own credibility with each editorial it writes on Alito. But while there is lots of room to debate the merits of the notification provision, there is none to denounce a vote that would spare it from constitutional oblivion under Roe v. Wade. First off, it is a notification provision, not a consent provision. And why not? Surely a husband has some interest in deciding whether an unborn child—I expose my anti-Roe prejudices—lives or dies. Indeed it is an odd marriage in which consultation would be done routinely in secret. In addition the notification provision had exceptions. It did not apply in cases of abuse, in cases where the father was some other person; or in cases of rape. Perhaps the matter should have been left to a woman’s choice, but if this knocks a Supreme Court nomination off the rails, then we should quake in our boots. No one with any spine or distinction could run the gauntlet. Score three for Sam.
The bottom line: the opponents have not come close to making out their case to derail the nomination. Even Joe Biden has announced that he will not support a filibuster. Now if he will only wave a copy of Takings before a somewhat befuddled Alito, he will make my day. Next time, some other topic.