Jewish World Review Nov. 2, 2005 / 30 Tishrei, 5766

Paul Greenberg

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On to a real debate: This nominee thinks | The rap on Harriet Miers, W.'s first nominee to fill the seat on the U.S. Supreme Court now held by Sandra Day O'Connor, was that she was a blank slate. There was no there there, the country was told, so the lady never got a chance to demonstrate there was. Between the always suspicious left (George W. Bush nominated her, didn't he? She can't be any good!) and the more-conservative-than-thou right (Who knows whether she's really pro-life?), Harriet Miers didn't stand a chance. And her public slate will stay blank.

Now the president has nominated The Hon. Samuel Alito Jr., who's been hearing cases on the Third Circuit Court of Appeals for 15 years now — with all that means in terms of a long and very public paper trail. There's bound to be a lot there to plow through, weigh, assess and argue over.

At last. It's about time the country had a debate on substance, on the actual decisions a judge has written, rather than still another binge of political speculation.

This time there'll be no be shortage of grist for the senators to examine. To begin with, the judge's critics aren't going to get much mileage out of his resume, since it's more than respectable, it's impressive:

Princeton as an undergraduate, (Phi Beta Kappa), Yale Law School, a clerkship for a judge on the Third Circuit, four years in the U.S. solicitor general's office, three years as a deputy assistant attorney general, and then a stint as U.S. district attorney in New Jersey before being appointed to the Third Circuit by the first President Bush. A blank slate he isn't.

As an advocate, Samuel Alito's record is impressive, having argued a dozen cases before the U.S. Supreme Court, winning eight of them, losing two and getting a couple of split decisions.

As an appellate judge, Samuel Alito has produced a number of opinions that may or may not indicate the direction he would go as an associate justice of the Supreme Court, but they do reveal an intelligence capable of construing the law and the court's own precedents with reason and restraint.

In a majority opinion, the judge sided with an Iranian woman who sought political asylum in this country from that theocratic regime's well-known tendency to hold women down.

He also wrote a majority opinion striking down a school district's anti-harassment policy that turned out to be more of an anti-free-speech policy. Particularly since the speech that was banned posed no real threat to good order in the classroom. He found against another school district because it hadn't done enough to protect a student from bullying because the kid was perceived as different. Not exactly the record of a kneejerk of any persuasion.

In the confused and confusing field of church-state law, Judge Alito wrote a majority opinion upholding one of those X-mas/Winter Festival seasonal displays on government property that contains everything from a nativity scene to a menorah to a general endorsement of diversity. Such displays may be silly, but given the state of current constitutional law, it's hard to see what's unconstitutional about them.

The judge has written his share of dissents, too, notably in Planned Parenthood v. Casey, in which he would have upheld a Pennsylvania law requiring women seeking abortions to inform their husbands. In an instance of judicial restraint, he was willing to credit that state Legislature's good faith in believing that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of "perceived problems" that might be resolved if the husband knew of the planned abortion.

Following precedents laid down by the Supreme Court, the judge agreed that a New Jersey law restricting late-term abortions was unconstitutional despite his personal reservations. And he also voted to overturn restrictions on publicly funded abortions in Pennsylvania, holding that federal policy trumped state law.

It won't be easy depicting this judge as some kind of fanatic, though surely his critics will try. If anything is predictable about the kind of decisions he would write as an associate justice of the U.S. Supreme Court, it's that they wouldn't be easy to predict. Cases don't reach the high court because they're simple, and neither should judges.

Judge Alito's opinions may not be marked by eloquence, but they indicate that, whether you'd call him conservative or very conservative, he is definitely a thinking conservative, which could be just what worries kneejerk liberals most.

The Schumers and Kennedys in the Senate would be delighted to pick apart a stereotypical right-winger. It's the thoughtful conservative who's hardest to criticize — and who in the end surely has the greatest influence on the law.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. All the quotations in this column were culled from Tuesday's edition of the Democrat-Gazette. Send your comments by clicking here.

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