Commonweal on Alito

The Commonweal editors' take ("Justice & Alito") on the Alito nomination is, as one would expect, reasonable and responsible, even if (in my view) misguided.  To their credit, the editors squarely contend that the Democrats' devotion to Roe is unfortunate and that the opinion itself is indefensible.  Unlike the editors, I strongly support Alito's nomination; like the editors, I believe that he is a gifted lawyer and a decent person; unlike the editors, I believe that his approach to constitutional interpretation and his understanding of the judicial role under our Constitution are sound, not "narrow and troubling."

The editors write:

There is little doubt that Alito’s embrace of “judicial restraint” will result in rulings restricting the federal government’s efforts in areas such as environmental protection, campaign-finance reform, voting rights, workplace safety and discrimination, and the rights of criminal defendants. Most worrisome, Alito gives every indication of being excessively deferential to the executive branch at a time when the president is asserting virtually unprecedented authority with regard to national defense, domestic spying, and the right to imprison people, including U.S. citizens, without trial.

More is needed, it seems to me.  I cannot believe that the editors believe that the merits of a judge's approach to his or her work is reducible to the question whether the application of that approach "will result in rulings restricting the federal government’s efforts in areas such as environmental protection, campaign-finance reform, voting rights, workplace safety and discrimination, and the rights of criminal defendants."  (Put aside my strong disagreement with the editors that so-called campaign-finance reform is, like the "rights of criminal defendants", something that those of us who endorse constitutionalism and individual rights should embrace). 

Nor do the editors tell us by what measure Judge Alito's deference to the executive is "excessive[]."  (Is the rule of deference for Justices interpreting the Constitution:  Defer to legislatures, as they are enacting regulations we approve, but not to the executive, which is acting in ways we disapprove?  One might think, after all, that Congress asserted "virtually unprecedented" authority to regulate political and election-related speech, in the latest round of campaign-finance reform.)

Interestingly, the editors seemed most focused on Judge Alito's observation, during his short opening statement, that some of his privileged college classmates behaved irresponsibly, and on his failure to acknowledge, at the same time, that some in power behaved irresponsibly as well and that the "culture wars" were the product, in part, of important steps forward in the civil rights arena.  In my view, the editors are making too much of this -- it is the case that some privileged campus radicals behaved very badly -- and make the unwarranted charge that Alito resorted to the "ploy" of endorsing the "culture wars that pit the religious and traditional against the unreligious and disrespectful are a pernicious simplification and a lie."  I didn't hear him do any such thing.