January 23, 2006

New York Times editorial on Judge Alito

In an editorial today titled "Judge Alito's Radical Views," The New York Times reached its unsurprising conclusion that Judge Samuel Alito should not be confirmed as the next associate justice of the Supreme Court.

According to the Times, Alito "has also put forth the outlandish idea that if the president makes a statement when he signs a bill into law, a court interpreting the law should give his intent the same weight it gives to Congress's intent in writing and approving the law." Alito did advocate a policy of Presidents issuing signing statements during the Reagan administration, and it is far from "outlandish." All three co-equal branches of the federal government have a duty to interpret the Constitution. It seems quite reasonable for a President to provide his own interpretation of the bill and for the courts to weigh his statement accordingly.

The Times also argues: "Judge Alito would also work to reduce Congress's power in other ways. . . . [A]s a government lawyer he insisted Congress did not have the power to protect car buyers from falsified odometers." This assertion is a bold-faced mischaracterization of the record. During an exchange at the hearings that took place between Alito and Senator Diane Feinstein, the Senator pointed to a statement that Alito wrote while at the Office of Legal Counsel, when he recommended that President Reagan veto an odometer fraud bill because he believed it violated the principles of federalism.

Alito explained that the memo was "primarily expressing . . . [not] an interpretation of the scope of Congress's constitutional authority but a recommendation based on the federalism policies of the Reagan administration." Alito never said that Congress did not possess the power to regulate odometers, but rather that it should defer to the states on that issue. The Times's assertion is a gray lie.

The Times also observes: "There is every reason to believe . . . that Judge Alito would quickly vote to overturn Roe v. Wade. So it is hard to see how Senators Lincoln Chaffee, Olympia Snowe and Susan Collins, all Republicans, could square support for Judge Alito with their commitment to abortion rights." It may be that these senators do not believe that mere ideological disagreement on a single issue with an otherwise stellar nominee of impeccable reputation is a sufficient basis for rejecting his nomination. This would square with the understanding of the past 200-plus years of judicial confirmation hearings.

The only thing "hard to see" is how anyone to the right of Chuck Schumer would find the Times editorial persuasive.

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