[Mb-civic] Alito's Challenge - David S. Broder - Washington Post Op-Ed

[William Swiggard]

Alito's Challenge

By David S. Broder
Sunday, January 8, 2006; B07

The two names uppermost on the minds of official Washington at this 
moment represent polar extremes of reputation. Disgraced lobbyist Jack 
Abramoff is an admitted felon and a certified sleaze. Supreme Court 
nominee Judge Samuel Alito is an upright, ethical and highly respected 
jurist, as modest in his habits as Abramoff is flamboyant.

Abramoff's operations have been thoroughly exposed by the reporting of 
my colleagues at The Post and in the plea agreements he signed with 
federal prosecutors, sending tremors of anxiety through the ranks of 
congressional Republicans and a few Democrats as well.

Alito's work, as a member of the Philadelphia-based U.S. Court of 
Appeals for the 3rd Circuit, will become much more familiar to the 
nation when the Senate Judiciary Committee holds its hearings this week 
on his nomination to succeed Justice Sandra Day O'Connor.

The question that confronts the senators is whether Alito has an agenda 
that is every bit as well-defined as that for which the Indian tribes 
and others hired Abramoff -- but vastly larger in significance.

The goals for which Abramoff connived were petty -- a gambling license 
here, a contract there. The issues with which Alito has wrestled in his 
15 years on the federal bench are much more consequential: the 
relationship between individuals and the state, the regulatory authority 
of the federal government, the balance of power between the president 
and Congress, the protection of civil rights.

On all these issues, Alito has compiled a record that can be read -- and 
is read by many legal scholars -- as reflecting a consistent and 
reasoned preference for governmental authority, especially presidential 
power, and a restrictive view of individual rights.

University of Chicago law professor Cass Sunstein, for example, 
concluded a study of Alito's dissents with the observation that "there 
is a good chance that Alito will be with Justices [Antonin] Scalia and 
[Clarence] Thomas in their attempts to move constitutional law in some 
respects to what it was a long time ago."

If that reading is correct, then the confirmation of Alito as O'Connor's 
successor would shift the current Supreme Court balance decisively to 
the right.

For senators who share President Bush's often-expressed desire to see 
that happen, the confirmation of Alito presents no conflict. Moreover, 
his "highly qualified" rating from the American Bar Association 
underlines the near-universal belief that his intellect and temperament 
commend him for the bench.

But others face a harder task in weighing the Alito nomination. They may 
well ask: At a time when the administration is asserting a broad right 
to conduct warrantless wiretaps of Americans' phone calls, do we really 
need a Supreme Court that takes an expansionist view of presidential 
authority? In an era of corporate corruption, do we want to restrict 
consumers' and workers' ability to turn to the courts for help?

But the evidence on Alito's motivations is not one-sided. At the 
suggestion of White House allies, I spoke with two of his former 
colleagues who presented compelling personal testimony that he is not a 
man driven by a personal or ideological agenda.

Robert Del Tufo was the Jimmy Carter-appointed U.S. attorney in New 
Jersey who employed Alito in the 1970s to handle difficult appellate 
cases. "There is no ideological bent that I can perceive," he told me. 
"He is a balanced human being with great sensitivity for human values 
and a scholar who analyzes the law and always stays with it."

Susan Sullivan of San Francisco clerked for Alito during the year he 
wrote his controversial Casey opinion, upholding portions of a 
Pennsylvania statute restricting abortion, a decision later overturned 
by the Supreme Court. Sullivan, who describes herself as "a social 
progressive who is pro-choice and anti-death penalty," says, "In general 
I would react with suspicion to any nominee of this administration. But 
having worked with him, I know he does not work toward a specific 
result. He is not intent on advancing his own agenda. He approaches 
cases in a very impartial way."

When John Roberts came before the Judiciary Committee for confirmation 
as chief justice, with barely more than two years of judicial opinions 
behind him, he was thoroughly believable in disclaiming any particular 
agenda. All Republicans and half the Democrats saw him, as I did, as an 
embodiment of judicial impartiality.

Maybe Alito can establish a similar claim for himself in these hearings. 
But he has a lot of convincing to do.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/06/AR2006010601481.html
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