Jewish World Review Jan. 12, 2006/ 12 Teves 5766

Cal Thomas

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Who has an agenda? | Samuel Alito felt he had to appease the liberal gods during the early stages of his Senate Judiciary Committee hearings by declaring he has "no agenda." Conservatives are supposed to say such things, whether they mean it or not. Liberals have an agenda: to change the culture of the nation by judicial edicts.

Sen. Charles Schumer, New York Democrat, summarized the left's agenda. Schumer declared that Alito has a "triple burden." Not only is he replacing the swing vote of Justice Sandra Day O'Connor, but he must also prove he is not the handmaiden of the religious right, or that he would take extreme positions on constitutional issues.

Nowhere in the Constitution is there mention of a swing vote seat (or a minority or female seat, either, as some liberals have suggested). Nowhere in the Constitution is "extreme" defined. It could be argued there have been many extreme positions taken by the court — from Dred Scott v. Sandford (in which the court majority decided that slaves could never be considered citizens of the United States, to Roe v. Wade in which a majority claimed that a woman had total autonomy over the life of her unborn child.)

If Schumer is concerned about justices taking extreme positions, he should have voted against Justice Ruth Bader Ginsburg, whose writings and pronouncements revealed her belief, while an ACLU lawyer, in legalizing human relationships beyond male-female marriage and secularizing the public square. To a liberal such a position is mainstream.


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Alito's performance has not been equal to John Roberts', now chief justice, but his grasp of law and the Constitution shows that he will make a thoughtful and wise justice, as long as he refrains from reading the editorial pages of The Washington Post and New York Times, hires law clerks who believe as he does and avoids dinner parties in Georgetown and Cleveland Park where the liberal siren song tries to turn conservative justices into mushy moderates (like O'Connor and Anthony Kennedy) and encourage stealth liberals, like David Souter, who was sold as a conservative, but needed little help in his rapid leftward drift.

To borrow from Forrest Gump's mother, a Supreme Court justice is like a box of chocolates you never know what you're gonna get.

Alito seemed to have his "legal chocolates" sorted out when he properly noted that no president is above the law, that one must put aside his personal beliefs when he becomes a judge (if only liberals would do that), and that a state of war is not a "blank check" for a president when it comes to the rights of its citizens. Alito was properly cautious on this last point, leaving himself room to decide those presidential rights based on what cases come before him. He noted complicating factors involving executive branch authority, potentially creating a "twilight zone."

Alito said the courts should generally follow their earlier decisions and avoid being moved by public opinion on controversial issues. If earlier courts had accepted that view, the right to life of more than 40 million babies might have been preserved and we would not be struggling over the definition of marriage, free religious expression and censorship of the Pledge of Allegiance in public schools.

The left has not been able to demonize Alito in the way it did Clarence Thomas and Robert Bork. One reason is that it no longer controls the information flow. Alternative media have done a splendid job of countering every wrong assertion from liberal senators and the advocacy groups writing their talking points. Unless they can come up with something more profound than Sen. Edward Kennedy's assertion that Alito favors big business and big government over the little guy, Alito is likely to be confirmed.

The question then becomes, will Justice Alito cling to his conservative judicial philosophy and interpret laws in light of what the Constitution says, or will he drift toward the liberal agenda, as has happened too often in the past?

One clue he might not drift came in his answer to a question about legal precedent. Responding to committee chairman Arlen Specter, Pennsylvania Republican, Alito said that while he agrees "with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent" he nevertheless does not subscribe to the idea of a "super precedent."

That leaves Alito enough wiggle room to become a super justice with the Constitution as his sole agenda.

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JWR contributor Cal Thomas is the author of, among others, The Wit and Wisdom of Cal Thomas Comment by clicking here.

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