Dear Colleague:
The more we learn about Judge Alito, the better we like him. But many in
the media and liberal interest groups will try to convince you not to.
Steven W. Mosher
President
PRI Weekly Briefing
23 November 2005
Vol. 7 / No. 46
More Smiles for Scalito
By Joseph A. D'Agostino
Since we first wrote on November 4 in praise of Judge Samuel Alito's
nomination to the U.S. Supreme Court, more information has become public
that should recommend him to pro-life and pro-family Americans. In fact,
all those who favor the rule of law and republican self-government should
be delighted with the choice of Alito, regardless of their views on
abortion, marriage, criminals' rights, or anything else. Those who favor
capricious rule by unelected judicial dictators are, of course,
disappointed, and that includes most so-called "liberals."
Some conservative Americans might be concerned by the arguments that the
anti-Alito forces are beginning to marshal in what is only the beginning
of a very nasty assault against him. Supporters of left-wing supremacy in
the judiciary will accuse Alito of, among other things, favoring strip
searches of 10-year-old girls, disbelieving in democracy, and supporting
an end to racist government programs. The first of these accusations has
the most potential to damage Alito's reputation among the great swath of
pro-family Americans who may hear "strip search of 10-year-old girl" and
little else about the case in question.
First, the very positive news about Alito: As the Washington Times first
reported, Alito wrote on a job application in 1985, "It has been an honor
and source of personal satisfaction for me to serve in the office of the
Solicitor General during President Reagan's administration and to help to
advance legal positions in which I personally believe very strongly. I am
particularly proud of my contributions in recent cases in which the
government has argued in the Supreme Court that racial and ethnic quotas
should not be allowed and that the Constitution does not protect a right
to an abortion." In attempting to become a deputy to Atty. Gen. Ed Meese,
Alito also said, "I am and always have been a conservative. I am a
life-long registered Republican. . . . I believe very strongly in limited
government, federalism, free enterprise, the supremacy of the elected
branches of government, the need for a strong defense and effective law
enforcement, and the legitimacy of a government role in protecting
traditional values. In the field of law, I disagree strenuously with the
usurpation by the judiciary of decision-making authority that should be
exercised by the branches of government responsible to the electorate."
Not stopping there, Alito named the conservative influences on his
thought. "When I first became interested in government and politics
during the 1960s, the greatest influences on my views were the writings of
William F. Buckley Jr., the National Review, and Barry Goldwater's 1964
campaign," he wrote. "In college, I developed a deep interest in
constitutional law, motivated in large part by disagreement with Warren
Court decisions, particularly in the areas of criminal procedure, the
Establishment Clause, and reapportionment."
Combine this with his excellent record of judicial restraint, his
membership in the constitutionalist Federalist Society, and his mother's
statement that "of course he's against abortion," Alito has all the
makings of a fine Supreme Court justice. He has not been called
"Scalito," or "little Scalia," for nothing. Religious Americans,
especially, should note that Alito is widely known for favoring the
accommodation of religious belief and expression whenever feasible.
We cannot be certain that Alito will vote to overturn Roe v. Wade, even
though he said 20 years ago that he believed "the Constitution does not
protect a right to an abortion." We can only hope, based on very solid
grounds. Anyone who openly promised to overturn a long-standing precedent
such as Roe would not be nominated, and if he were, would not be confirmed
by the Senate. The standard has long been set: Nominees do not say how
they would rule on specific cases.
As for the poor little girl, Alito made the correct decision. Dissenting
from Doe v. Groody (2004), he argued that police could not be sued for
searching the girl even though their search warrant gave them explicit
permission to search only a suspected drug dealer, the girl's father,
living in the same house (a female officer performed the search of the
girl with the girl's mother present). Alito came to the conclusion that
it was reasonable enough for the police to search everyone on the premises
given the evidence they had, and that therefore they should not be exposed
to lawsuits for doing so.
Note that Alito did not rule that strip searching 10-year-old girls is
appropriate, or even that it is generally constitutional without a
warrant. Note, too, that the girl was strip-searched, not body-cavity
searched. Alito ruled only that the police could not be sued for doing so
under these particular circumstances, and he had plenty of legal precedent
to back his opinion. In our legal system, policemen typically cannot be
sued for good faith acts performed in the course of their duties, even if
they make mistakes.
As for the merits of strip-searching children, it is necessary that the
police be able to do so, or else drug dealers and other criminals would
use children to carry drugs, weapons, and other such items even more often
than they do now. If adult criminals know that children cannot be
searched, they will exploit those children accordingly.
Liberals will allege that Alito opposes affirmative action programs, which
is a lie. Alito wrote that he opposed quotas, not programs that attempt
to find qualified candidates among neglected minority populations. That
will not please most liberals, who explicitly favor institutionalized
racism (against whites and Asians) and sexism (against men), but should
please those who favor a race-blind American government.
Sen. Joe Biden (D.-Del.), among others, has wondered if Alito believes in
the "one man, one vote" principle since he criticized Warren Court
decisions touching the subject. Alito has reportedly been assuring people
that he does believe in it. However, the Supreme Court did some silly
things with this principle, such as invalidating a New Jersey
congressional redistricting plan because population sizes among districts
varied by 0.7%. That's just one example of how the courts have taken the
"one man, one vote" principle to an extreme.
And Sen. Biden had better hope that the courts do not take it even
further. It's especially amusing to see him backing "one man, one vote"
since the U.S. Senate in which he serves is structured in opposition to
that principle, and was deliberately made that way by our Founding
Fathers. Biden and his fellow senator from Delaware (population 830,000)
have the same voting power in the Senate as do the two senators from
California (population 36 million), giving each Delaware voter
proportionally far more influence over the legislation of the United
States of America than each California voter. The voters in a state of
less than one million people have exactly the same amount of
representation in the Senate as those of our nation's largest state.
Because of a pact with Democrats made by Senate Judiciary Committee
Chairman Arlen Specter (R.-Pa.), the media and the Left have plenty of
time to figure out how to blacken the name of Alito, one of the nation's
most respected jurists. Hearings do not begin until January 9, and a
Senate floor vote on his nomination is not expected until January 20.
Don't let their distortions, either the ones discussed earlier or new ones
yet to emerge, fool you.
Joseph A. D'Agostino is Vice President for Communications at the
Population Research Institute.
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