Finito To 'Scalito'?

Judge Samuel Alito, left, meets with Sen. Ben Nelson, D-Neb., on Capitol Hill, Wednesday, Nov. 2, 2005, to discuss Alito's nomination to the Supreme Court.
This column was written by David Corn.
Now that George Will, William Kristol, David Frum, Linda Chavez, Charles Krauthammer, Edwin Meese, Robert Bork and all the other conservative power brokers have forced George W. Bush to fall to his knees and kiss their feet — by nominating Federal Appeals Court Judge Samuel Alito to replace Harriet "I Love W" Miers to replace Sandra Day O'Connor on the U.S. Supreme Court — there is no escape for the Senate Democrats. They have only one strategic option: Make the battle over Alito a political fight about substance.

There is no question that Alito is qualified, in that he has been an assistant solicitor general, a deputy assistant U.S. attorney general, a U.S. attorney and an appeals court judge. He is reputedly intelligent and scholarly. There will be no major disagreement over document releases; there are fifteen years of appeals court decisions for his friends and foes to scrutinize. That leaves the Democrats one avenue of attack: Alito would be bad for America.

The liberal Democratic senators and the progressive groups are already trying to affix a big red "E" to Alito's robe — that's "E" for "Extremist" — and pointing out how conservative he has been on the Third Circuit Court of Appeals. For instance, he wrote a dissent in which he upheld the provision of a Pennsylvania law that would have required a woman to notify her spouse before obtaining an abortion. (A Supreme Court majority later disagreed with Alito.) He has written decisions that weaken civil rights law, particularly in the areas of race and gender.

In other cases, he wrote a dissent arguing that Congress did not have the power under the Commerce Clause of the U.S. Constitution to regulate the transfer and possession of machine guns, and he wrote a majority opinion (later reversed by the Supreme Court) that claimed Congress could not require state employers to abide by the Family and Medical Leave Act of 1993. This suggests he might have a rather restrictive view of how far the federal government can go — say, with environmental laws — to protect its citizens.

But the Democrats need to do more than rely on the usual extremist-baiting. They have to state clearly that they are opposing Alito — whose philosophical similarity to Justice Antonin Scalia has earned him the nickname "Scalito" — for policy reasons. The Supreme Court, they should argue, keeps becoming more significant in the lives of Americans, deciding critical matters (privacy rights, religious controversies, environmental laws, assisted suicide and at least one presidential election). Consequently, Democrats should say they are now going to judge potential Justices on the basis of where these men and women may lead the nation.