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Published: Wednesday, 11/2/2005

A big tilt to the right

WHEN conservatives rose up against the nomination of Harriet Miers for the vacant seat on the U.S. Supreme Court, they did so because she had never been a judge and because her conservative credentials were not sufficiently known to be trusted.

President Bush s nomination of Judge Samuel Alito, Jr., answers both of these points but in the worst way one that is heedless of any sense of moderation. To replace Justice Sandra Day O Connor, a middle-of-the-road conservative and a sensible swing vote on the court, Mr. Bush has looked only to appease his base, as if Americans in the center do not count.

Judge Alito has been on the 3rd U.S. Circuit Court of Appeals in Philadelphia since 1990, appointed by the father of the current president. He served with the Reagan administration in Washington, D.C., as assistant to the solicitor general, then as deputy attorney general. He later went home to New Jersey to become U.S. attorney.

When it comes to legal credentials, Judge Alito, educated at Princeton University and Yale, has them in abundance. But in an ironic echo of the way that Ms. Miers lack of service on the bench made her an unknown quantity, Judge Alito s career makes him no mystery at all.

He is a very conservative judge, so much so that he has been dubbed Judge Scalito for his resemblance to sitting Justice Antonin Scalia, who with Justice Clarence Thomas occupies the Supreme Court s right flank.

So well known is this judge that interest groups on the right and left did not have to pause a moment before they took up their opposing positions for the coming shouting match over this nomination. In conservative circles, it is generally assumed that he will join those who want to overturn Roe vs. Wade and its guarantee of a woman s right to a legal abortion.

These expectations are not improbable. His views are clearly hinted at in his record.

In a case that is bound to be much discussed in his nomination hearing, Planned Parenthood of Southeastern Pennsylvania vs. Casey, Judge Alito was the lone dissenter when the Third Circuit ruled that a spousal notification provision of the state s abortion law was unconstitutional.

Although the future of legalized abortion may come to dominate the debate, ordinary Americans who want other rights vindicated by federal courts say for discrimination dealing with matters of sexual harassment, disabilities, or race may find that this nominee threatens to be an activist judge of another stripe. His record suggests a tendency to read the law narrowly so that even deserving claimants can be denied.

It is dismaying that President Bush should have so quickly jettisoned the perceived need for a woman to replace the woman justice who is retiring. If Roe vs. Wade is eventually overturned, a core issue unique to womanhood may be decided entirely by men (if she is still on the court, the liberal Justice Ruth Bader Ginsburg will surely be a dissenter).

By pushing this nominee, Mr. Bush has signaled that he does not care if his supporters get the fight they are spoiling for. While it is too early to speak of filibusters, Judge Alito s nomination does not bode well.



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