Stuart Taylor on Judge Alito

Ed Whelan has highlighted liberal Stuart Taylor's thoughts on Judge Alito.

Taylor continues to be one of the sane voices in the judicial debate, a man whom we can all easily respect even when we disagree with his opinions at time.

...Sure, Alito seems a bit to the right of the current Supreme Court's somewhat left-of-center majority (and of yours truly, too). But his now-famous 1985 application, considered together with his 300 closely reasoned judicial opinions over the past 15 years, places him much closer to the center of American public opinion than his critics are. He also seems closer to the center than does Clinton-appointed Justice Ruth Bader Ginsburg (confirmed by 96-3), and quite comparable to Chief Justice John Roberts (78-22).

Here's what Alito wrote 20 years ago, in applying to then-Attorney General Edwin Meese for a promotion from his civil service job as an assistant solicitor general to a politically appointed position:

"I am and always have been a conservative.... 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."

Not so scary. But now come what critics call the smoking guns:

"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.... In college, I [strongly disagreed] with Warren Court decisions, particularly in the areas of criminal procedure, the establishment clause, and reapportionment.... 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."

These are certainly the words of a Reagan conservative. But are they outside the mainstream? Somebody should tell The New York Times that Reagan won 49 states in 1984...

If Alito is outside the mainstream on abortion, then so are the very large percentage of constitutional scholars -- including many pro-choice liberals -- who agree that Roe was a judicial usurpation of legislative authority with no basis in the Constitution. Even Ginsburg herself wrote (also in 1985) that Roe was "heavy-handed judicial intervention [that] was difficult to justify and appears to have provoked, not resolved, conflict."

To be sure, most Americans disagree with Alito's 1985 view that Roe should be overruled. But this is partly because many do not understand that the Roe abortion right is virtually absolute, and many are under the false impression that overruling Roe would make abortion illegal.

Polls show clearly that wide majorities of Americans want more restrictions on abortion -- especially late abortions -- than Roe allows...

As for racial preferences, Alito's 1985 assertion that "racial and ethnic quotas should not be allowed" places him squarely in the middle of public opinion -- unlike Ginsburg, who has voted to uphold wholesale use of quota-like preferences in college admissions, contracting, and other areas.

Polls show overwhelming public opposition to quotas. And neutrally worded polls that avoid the word "quota" show that more than two-thirds of Americans oppose racial preferences...

The closest that Alito came to being "outside the mainstream" in his 1985 application was his whack at unspecified Warren Court decisions on "criminal procedure, the establishment clause, and reapportionment."

It is clear, however, that Warren Court decisions in these areas were subjected to trenchant criticism by mainstream scholars, and some were broadly unpopular at the time. These include decisions expanding defendants' rights, barring school prayer, and striking down aid to religious schools.

It is also clear that any moves by Alito toward greater governmental accommodation of religion would put him closer to the center of public opinion than Ginsburg is. Some of the liberal precedents that she has supported have been plausibly interpreted by a federal appeals court (among others) as barring all governmental "endorsements" of religion, including even the words "under God" in the Pledge of Allegiance. The appeals court ruling provoked a unanimous Senate vote of condemnation in 2002. Is the entire Senate outside the mainstream?

As for Alito's unexplained 1985 objection to reapportionment decisions, perhaps he had read the widely revered Justice John Marshall Harlan's demonstration in a 1964 dissent that "one person, one vote" was a judicial creation with no basis in the Constitution's text or history...

The list of other Alito statements distorted by critics is long. You will hear of him letting cops "strip-search" a 10-year-old girl. And upholding removal of black people from juries. And gutting the Family and Medical Leave Act. And seeking to legalize machine guns.

You will hear critics scoffing at the virtually unanimous praise of Alito by people who know him well -- liberals, moderates, and conservatives. You will hear him called a "right-wing suck-up" and (by The New York Times again) an "ideologue."

But you will know better...