With the stakes so high in the Senate's consideration of Judge Samuel Alito to replace Justice Sandra Day O'Connor, it is vital that his nomination be considered with candor.
Instead, liberals are raising strained questions about Alito's character and conservatives are pretending he is a moderate. Our country deserves better.
The real issue facing America is whether it makes sense to replace the critical "swing" vote on the court with a jurist who would likely move the court substantially to the right on numerous issues of great moment to our nation.
Any Supreme Court vacancy is significant, but some are more consequential than others. O'Connor is widely regarded as a success in part because her moderately conservative views generally tracked those of most Americans. She helped to keep our often divided country together by staking out a middle ground between extremes.
Between 1995 and today, O'Connor was in the majority in a staggering 77 percent of the 193 cases that the Court decided 5-4. In those rulings, the Court reaffirmed the foundational importance of separating church and state, approved Congress' power to enact civil rights legislation and combat corruption in our campaign finance system, validated some uses of affirmative action in higher education, and required that abortion restrictions include exceptions to protect the mother's life and health.
Because the justices often don't defer to past decisions in recent, closely divided constitutional cases, those rulings and others will be vulnerable if O'Connor's replacement is significantly more conservative than she. The question that should be decisive regarding Alito, therefore, is where he stands on such issues. In post-9/11 America, moreover, when O'Connor reminded us that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," Alito's views on executive power loom large.
Instead of focusing on the real stakes, however, several groups opposed to Alito are getting personal. For example, they question whether he should have recused himself in certain cases involving a company that managed his investments.
Many of Alito's supporters, on the other hand, are pretending he is something (a moderate) that he is not; in a 1985 job application, Alito stressed just how conservative he is "and always ha[s] been."
His record on the bench bears out that he is one of the most conservative federal appeals court judges on the legal issues that matter most to America. That is why the same people who staged an ideological revolt when the president nominated Harriet Miers immediately rejoiced when he nominated Alito.
Regarding abortion rights, Alito wrote in the job application that "I personally believe very strongly ! that the Constitution does not protect a right to an abortion." Regardless of whether he would immediately vote to overturn Roe, he likely would undermine it severely. O'Connor allowed reasonable limits on access to abortion; it is hard to imagine an abortion restriction that a Justice Alito would not be prepared to uphold.
Alito's record also suggests a rejection of the bedrock wall of separation between church and state. The court is one vote short of overturning a key ruling that has protected the wall for decades. O'Connor wouldn't provide the fifth vote needed to knock it down. Alito likely would. He has voted to approve student prayers at public school graduations and religious displays on government property.
Alito is even more conservative than O'Connor on issues of congressional power, which is saying something. She is a stronger believer in "states' rights" than Justice Antonin Scalia, but she never said Congress couldn't regulate personal possession of machine guns. Alito did.
Similarly, it is difficult to find instances in which criminal defendants made arguments Alito would accept. And given his great deference to the exercise of executive power against criminal defendants and immigration detainees, there is scant cause to believe he would impose limits on presidential power in the war on terror.
Reasonable people can disagree about whether our country would be well served by a decent and honorable nominee who, if confirmed, will probably move the court significantly to the right. But let's stop pretending something else hangs in the balance.