How Do You Solve A Problem Like Alito?

(Admittedly, that pun would have been better with Scalia.)

We're again witnessing a runaround taking place at the Senate confirmation hearings for Samuel Alito. While more forthcoming that John Roberts (and he has to be, because there's so much case law for him to defend), Alito is still skillfully giving himself an out on a number of topics. Stare decisis (respecting precedent) is important but not inexorable; Roe is important law but not settled law; no man is above the law, and the President must follow the Constitution, but that doesn't settle the idea of inherent Constitutional powers (in other words, John Yoo and his crowd have tried to embed the shredding of the Bill of Rights and separation of powers WITHIN the law; Alito has said nothing on that). He acknowledged Presidential signing statements but said "I don't think the Supreme Court has dealt with them yet," a non-answer (considering he endorsed the practice 20 years ago).

Fair enough; it's nearly impossible to pin down a lawyer. The real concerns are the things Alito can't adequately explain, which speak to his character and integrity. He expressly stated in his Circuit Court hearings that he would recuse himself from any case involving the Vanguard Company; 12 years later, he ruled on a Vanguard case. His explanation was "I forgot." He wrote on his job application for the Justice Department in 1985 that he was a member of Concerned Alumni of Princeton, a conservative group that opposed equal access to women and blacks at the university. His explanation was "I forgot that I was part of it."

In addition, outside the hearing room, we've heard Alito's reverence for America's worst Supreme Court nominee, Robert Bork:

Aron: Do you think Robert Bork should have been confirmed?

Alito: I certainly thought he should have been confirmed. I think he was one of the most outstanding nominees of this century.

Aron: Why? How?

Alito: He is a man of unequaled intellectual ability, understanding of constitutional history, someone who had thought deeply throughout his entire life about constitutional issues and about the Supreme Court and the role that it ought to play in American society.

Robert Bork was a nutcase. He believed in an almost unlimited scope of Presidential power, rejected checks and balances, said the Constitution does not give "a right to procreation," would have struck down laws allowing contraceptive use among COUPLES, and was generally judged to be radically outside the judicial mainstream. That's high praise indeed from the current nominee.

All of these things make Alito a very troubling nominee IMO. But Democrats need to understand their position. Elections have consequences: it would have been wise to have started talking about "changing the ideological balance of the Court" before November 2004, if you thought voters would want the Court's balance to remain the same. I'm gonna wash my mouth out with soap for saying this, but Sam Brownback was right in saying that there is no guaranteed ideological status quo to the Supreme Court. A conservative replacing O'Connor is no different than Ruth Bader Ginsburg replacing the conservative Byron White. So that's not a proper argument for rejecting Alito.

What is important is that the Constitution is respected. That Presidential power is checked. That a man who belonged to what seems like a sexist and racist hate group doesn't get off by saying "I forgot." It's clear that Alito is a very conservative jurist, and would overturn many basic rights that a lot of Americans take for granted. There's such a thing as losing well, and short of a filibuster (on which I remain undecided) it's important for the Democrats to state why they object to Alito's judicial philosophy. It's part of defining difference between the two parties. The whole "all politicians are the same" canard is given creedence when Democrats lie down on the job and don't press their responsibility to define who they are and what they stand for. There's no better time to do that than in a Supreme Court nomination hearing.

UPDATE: BenGoshi makes an important point about Alito's penchant to take the decision-making process away from juries, even where there is reasonable doubt about the facts of cases. Now that's REAL judicial activism.