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Jewish World Review Nov. 3, 2005/ 1 Mar-Cheshvan 5766

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Bring it on with Alito

http://www.NewsAndOpinion.com | The same blogs that registered extreme opposition to the nomination of Harriet Miers for the Supreme Court are overjoyed by President Bush's selection of Samuel A. Alito Jr. to replace Justice Sandra Day O'Connor.

Manuel Miranda, chair of the Third Branch Conference, who, along with former Bush speechwriter David Frum, was among the first to openly criticize Miers, calls Alito "immensely well qualified" and "a constitutionalist who has weathered one of the more liberal federal circuit courts in the country." Miranda likened the nomination to that of now Chief Justice John Roberts, calling the Alito selection "a grand slam."

Other reactions from conservatives were similarly ecstatic. Americans for Better Justice, which opposed the Miers nomination, issued a statement that said, "Judge Alito possesses both the brilliance and humility necessary in a Supreme Court justice."

Unlike the Miers pick, Alito's qualifications are beyond doubt. That means the debate will center on his judicial philosophy, which positions conservatives for the ideological fight they've been seeking.

That battle will be fought over two main issues: abortion and religious freedom. Liberal Democrats and some Republicans will want to know the reasoning behind Judge Alito's disagreement with the Third Circuit majority in Planned Parenthood v. Casey. In that ruling, as the lone dissenter, Alito voted to uphold Pennsylvania's informed consent, parental consent and reporting and public disclosure requirements. The Supreme Court later affirmed his court's majority decision.

In another highly charged abortion case, Judge Alito voted in favor of spousal notification prior to an abortion. He based his decision on the "undue burden" standard articulated by Justice O'Connor in Supreme Court cases Webster v. Reproductive Services and Hodgson v. Minnesota. The law Alito upheld fell short of giving husbands veto power over their wives decision to have an abortion.

While pro-choicers are already attacking that ruling, it is important to note that spousal notification was not Judge Alito's idea. Pennsylvania voters enacted it with four safeguards allowing a woman to have an abortion without telling her husband: (1) if the woman believed the husband was not the father; (2) if the husband could not be found after diligent effort; (3) the pregnancy was the result of a spousal sexual assault that was reported to the authorities, and (4) the woman believed the notification was likely to result in the infliction of bodily injury to her. Judge Alito's role was to decide whether Pennsylvania voters had violated the Constitution by enacting such a statute.

Judge Alito does not appear to be a judicial maverick. In an affirmation of precedent, he voted to strike down New Jersey's ban on partial-birth abortion because of an earlier Supreme Court ruling that a similar Nebraska law was unconstitutional. He emphasized the "responsibility" of judges "to follow and apply controlling Supreme Court precedent."

On religious freedom questions, Judge Alito's rulings appear to side with conservatives who favor free religious expression in public places, rather than with liberals who mostly favor a public square devoid of religious speech.

In 1990, the Senate Democrat majority unanimously approved his nomination by President George H.W. Bush to the federal Court of Appeals. He won plaudits from several liberal senators, including Frank Lautenberg of New Jersey, who said Alito is "the kind of judge the public deserves — one who is impartial, thoughtful and fair." Sen. Bill Bradley of New Jersey backed Alito "100 percent" and said he would "make a contribution that will stand the test of time."

Even Sen. Edward Kennedy of Massachusetts liked Alito, saying he has a "distinguished record (w)e look forward to supporting you." Sen. Arlen Specter, Pennsylvania Republican, and now chairman of the Judiciary Committee, said Alito's 1990 nomination to the Appeals Court deserved "clear sailing."

Having enthusiastically backed Judge Alito then, it will be difficult for liberal Democrats to claim he is unqualified for the Supreme Court now. But they will try with their usual claims that someone who might overturn what previous activist judges have imposed on the country is "out of the mainstream."

Conservatives have been itching for an ideological battle over the Constitution and the direction of the Court. Depending on the level of liberal opposition, they may get one. If Judge Alito turns out the way his record and judicial philosophy indicate he might, conservatives could be thanking President Bush for decades to come.

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