I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, October 31, 2005

The way to attack Alito

It will be tempting to attack Samuel Alito's abortion jurisprudence on the ground that, in Planned Parenthood v. Casey, he voted (in lone dissent) to uphold as Constitutional the Pennsylvania statute requiring women seeking an abortion to first certify that they notified their husbands of their intent to do so. Anti-Alito commentators are already trumpeting his Casey dissent in launching their attack.

But for those who want to defeat this nomination, the goal has to be to convince those dreaded moderates -- the ones comprising the Senatorial Gang of 14 and beyond -- that Alito is too ideologically and judicially extreme to be a suitable replacement for Sandra Day O'Connor. This line of attack seems destined to fail in that objective, and worse, obscures a far more effective way to wield Alito's Casey dissent against him.

A law requiring a woman to notify her husband before she can abort her baby (not that she obtain consent of her husband, and not that she notify the father of her baby -- only that she notify her husband, if she has one) -- does not seem that it would greatly offend very many people beyond the hard-core, absolutist pro-choice minority, which is going to oppose Alito no matter what.

After all, the "husband notification" law in question was enacted by the Blue-state Pennsylvania legislature and signed into law by its Democratic Gov. Casey (hence the case name). It is consequently difficult -to put it mildly- to use Alito's Casey opinion (which simply found the law Constitutional) to depict him as some sort of crazed anti-abortion fanatic well outside of the mainstream. He may be that, but his Casey opinion doesn't demonstrate that, at least not in a way likely to convince those who need convincing.

A far more effective approach for using Alito's opinion in Casey is to use it to illustrate that he is the polar opposite of the moderate Justice O'Connor, and therefore entirely inappropriate to replace her. Remember -- it is not merely that the U.S. Supreme Court rejected Alito's conclusion in Casey when that case reached the Highest Court. Far more significantly, the Court rejected Alito's constitutional analysis of this statute by a narrow 5-4 decision, and expressed its holding in a Joint Opinion issued by Justices Kennedy, Souter -- and Sandra Day O'Connor.

Thus, we need not speculate about whether a Justice Alito replacing Justice O'Connor would alter the delicately maintained ideological balance of the Court. We know that it would -- drastically and radically. Indeed, they reached precisely opposite conclusions in Casey, one of the most important and controversial cases of the last 25 years defining the Constitutional rights of American citizens, and Justice O'Connor expressly held that Alito reached the wrong constitutional conclusion.

Luckily, with Casey, we have a live, breathing example of how different Alito would be from Justice O'Connor. After all, Justice O'Connor signed an opinion there directly repudiating the approach of Alito to analyzing abortion rights. That is the real value of Alito's Casey dissent -- to demonstrate what a fundamentally different jurist he is from the now-widely admired, moderate O'Connor.

This approach would shift this part of the debate from whether it is really all that horrendous to require that husbands be notified before their babies are aborted (something on which there would likely be substantial debate) to the much more potent question (from an anti-Alito perspective) of whether we want to (a) roughly maintain or (b) radically alter the centrist balance which the Court has maintained for the last 25 years, at least.

American citizens get engaged and react strongly when they believe there is about to be a profound shift towards an extreme (see the reaction to Bork, the rejection of the Gingrich Congress, Clinton's efforts to change military policy towards gays, Hillary's health care plans, Bush's anti-social security efforts, etc.). It seems much more likely that average citizens and moderate politicians would be galvanized by a threat to shift the ideological balance of the court much more so than by the notion that Alito thinks husbands should be notified before their wives get abortions.

Independently, this approach will also help to alleviate the not insignificant problem that Alito was confirmed unanimously by the Senate for his Court of Appeals seat, with many leading Democrats and important swing-Republicans praising him to the sky.

It may be the case, this approach will enable one to argue, that Alito was an acceptable choice for a 3rd Circuit Court of Appeal seat, but his ideological extremity and marked departure from O'Connor's jurisprudence makes him uniquely ill-suited to occupy the centrist, balance-maintaining seat being given up by Justice O'Connor.

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