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January 06, 2006,
1:02 p.m.
Against Complacency
While Republicans are worried about Democratic attempts to delay a vote on Samuel Alito’s nomination to the Supreme Court, they expect the hearings that start next week to end in his confirmation sooner or later. They have good reason for confidence, but none for complacency.
Alito’s opponents are hoping that the multiplicity of their charges against him will make up for the weakness of each one. They will fault him for following Sandra Day O’Connor’s lead on federalism. Then they will fault him because she disagreed with him on spousal-notification laws on abortion. They will say that it is radical to question Roe given the passage of time since that ruling; then they will say that it is disingenuous for him to suggest that the passage of time might have changed his view of how the Court should handle Roe.
They will depict him as an enemy of the principle of “one man, one vote”; he will easily parry that while the principle that legislative districts (excluding the Senate) should be roughly equal in population is well established, the application of that principle presents live issues on which he cannot comment. The American Bar Association has done itself credit by looking past the critics’ diversions and recognizing Alito’s superb qualifications.
Nevertheless, Republicans ought to take nothing for granted. They should fight as though the outcome were in doubt. They should let no false charge against Alito, or against conservative constitutionalism, go unanswered. Which is not to say that his confirmation should be a coronation. Republican senators should also be willing to press Alito to show his commitment to originalism, his recognition of the proper scope of judicial power, and his willingness to pull constitutional law back toward the Constitution.
There are two reasons, however, to commend conservative vigor in responding to baseless attacks from the Left: the next nomination, and this one. Turning to the first reason: Most Democrats realize that they are unlikely to derail this nomination. They want to score points that position them well for the next nomination, or the next election. Republicans should do what they can to thwart Democratic efforts to make it harder for the president to pick an originalist the next time around, or to associate originalism with disreputability in the public mind.
The second reason is that the outcome is, in truth, in some doubt. We do not know for sure how the hearings will go. The senators were impressed with John Roberts in part because he reminded them of their own self-image: gregarious, smooth, telegenic. Will Alito make the same impression on them? Will the viewing public think him too professorial? If senators badger him, repeating questions to which he has given good answers, how will he react? Will Arlen Specter start consulting the Scottish law books? Alito might come through without a nick. But Republican senators should be willing, where appropriate, to act as a shield.
