Judge Alito: Abortion, alumni, and authority

So, the Samuel Alito confirmation hearings are wrapping up, and so far we've learned mostly that Alito may or may not overturn Roe v. Wade, and that he may or may not have been a member of the controversial Concerned Alumni of Princeton. At least the fixation on abortion did not completely crowd out questions about Judge Alito's views on the question of executive powers.

Unfortunately, in the current political environment, any pointed questions on the subject coming from inevitably look partisan (and, coming from Republicans, would look disloyal). But in fact, while I'm sure that Alito is a highly qualified jurist and an intelligent and decent man, I think that concerns about his attitudes toward individual rights, civil liberties and state power are justified. George Washington University law professor Jonathan Turley, no one's idea of a liberal Democrat, thinks so too. (Edit: Corrected link) Here's what Turley has to say in a USA Today op-ed:

Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito's cases reveal an almost reflexive vote in favor of government, a preference based not on some overriding principle but an overriding party.

In my years as an academic and a litigator, I have rarely seen the equal of Alito's bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.

Turley adds that Alito's view on the subject have been "repeatedly rejected not only by his appellate colleagues but also by the U.S. Supreme Court." Many of the appellate judge who have rebuked Alito for his reluctance to curb government powers are conservatives -- including current Homeland Security chief Michael Chertoff, who in one opinion wrote that Alito would "transform the judicial officer into little more than the cliché 'rubber stamp.' "

Turley concludes:

An independent judiciary means little if our judges are not independently minded. In criminal, immigration and other cases, Alito is one of the government's most predictable votes on the federal bench. Though his supporters have attempted to portray this as merely a principle of judicial deference, it is a raw form of judicial bias.

The Alito vote might prove to be the single most important decision on the future of our constitutional system for decades to come. While I generally defer to presidents in their choices for the court, Samuel Alito is the wrong nominee at the wrong time for this country.

Is Turley overreacting? Maybe. Or maybe not. Either way, it's too bad that such questions are very unlikely to get serious and thoughtful consideration from either side. In any case, the concerns he raises are far more substantial and serious than this babble from Kate Michelman, formerly of NARAL Pro-Choice America, in The Boston Globe. Michelman asserts that Alito is stuck in a Pleasantville-like fantasy world of happy housewives and authoritative husbands. And we know this how? Because he backed the legality of spousal notification for abortion, something supported by about 70% of Americans?

Astonishingly, Michelman writes:

He sought to uphold abortion restrictions that would have treated a grown married woman no differently from a child, forcing her to notify her husband in all circumstances, including abuse and rape, before obtaining an abortion.

This is (to put it politely) untrue. As summarized by the Supreme Court in Planned Parenthood v. Casey, the Pennsylvania statute that Alito voted to uphold

provides, except in cases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion. The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her.

Michelman also writes that Alito "seems not to have believed women and minorities deserved equal access to his own educational institution, Princeton University." That's a reference to Alito's much-disputed involvement with Concerned Alumni of Princeton, which sparked a major squabble at the Senate Judiciary Committee hearings.

Ted Kennedy's bombshell -- the supposedly incriminating CAP records -- turned out to be a dud when it was revealed that none of the papers contained any mention of Alito. There is still the fact that he mentioned his CAP membership (along with the Federalist Society) in the letter applying for a high-level job in the Reagan Justice Department years after his graduation. Some commenters here and here suggest that he made it up in order to bolster his credentials as a true conservative.

Let's make one thing clear: CAP is not being unfairly maligned. It was not a mainstream conservative group but a radical reactionary one, with a strong streak of bigotry. (Some Alito defenders, such as Human Events'Terry Jeffrey in a CNN appearance, have tried to suggest that the group was tarred as racist simply it opposed preferential treatment in university admissions; but in fact, CAP opposed merit-based admissions and wanted quotas favoring males.) The real issue, of course, is whether Alito knew that.

Law professor Eric Muller, who personally knows and likes Samuel Alito, poses this question at IsThatLegal.org: how likely is it that a Princeton alumnus would not have known much about the group's doings? From my own experience, I can say that I was very aware of some flaps that occurred at my alma mater, Rutgers University, after my graduation, and barely aware of others. Perhaps Alito vaguely heard about the group being accused of racism and sexism but chalked it off to political correctness. If he did mention a non-existent membership in a conservative group (not on a résumé but in an application letter) to impress a prospective employer, it does not reflect well on his character, but I would be inclined to see it as a venial sin. It certainly doesn't make him a bigot; there is no evidence of bigotry in his career or his life, and trying to imply that he was one was a low blow that misfired badly for the Democrats.

More: Over at The Reality-Based Community, Mark Kleiman writes:

Alito, as a thirty-something lawyer bucking for a job with the Reagan Administration, boasted about his CAP membership as a way of displaying his paleo credentials to what was an extremely paleo ruling clique. ... Both Alito's eagerness to flash his credentials as a bigot in 1985 and his modified, limited veracity about the topic today are perfectly legitimate issues in considering him for the Supreme Bench.

First of all, the "boasting" consists of a single line in this letter (scroll down to page 16):

I am a member of the Federalist Society for Law and Public Policy and a regular participant at its luncheon meetings and a member of the Concerned Alumni of Princeton University, a conservative alumni group.

The letter, about 500 words long, was intended to prove Alito's bona fides as a conservative. Flashing his credentials as a bigot? Please. That presumes that not only Alito but the intended readers of his letter in the Reagan DOJ were extensively familiar with CAP's activities. In fact, CAP was clearly so little-known that Alito felt the need to identify it (unlike the Federalist Society) as "a conservative alumni group."

More: At Reason.com, Jeff Taylor writes:

A Justice Alito on the Court may force the body politic to confront this new reality, where abortion does not play a central role on the socio-political scene. The left will have failed to stop a nominee that, in their construction, threatens to reverse one of the singular civil rights advancements of 20th century America. Moreover, the American public did not pay much attention to their failure.

But the right will creep closer to its long-sought 5-4 court certain—absolutely certain—to revisit and overturn Roe. Except that Alito may never vote that way. Both sides may have to live with the alternative: An armistice in the battle over Roe.