So I’ve been sitting on the fence about the Alito nomination for awhile. While my values are quite liberal I think insisting that judges inject these values into their constitutional decisions endangers core constitutional rights like freedom of speech and protection from unreasonable search which should be at the core of a liberal approach to government. These rights only remain secure if the supreme court is bound by tradition and cultural understanding to apply principled legal interpretations to the constitution. It is therefore our responsibility as liberals and citizens to evaluate any supreme court nominee on their judicial philosophy and ability to impartially apply that philosophy rather than encouraging a view of the supreme court as a policy making body by demanding the ‘right’ positions on particular issues. I think in this situation it is in our best interests to (grudgingly) accept the fact that Bush will appoint a justice with a mainstream conservative philosophy and focus on making sure they will fairly apply that philosophy with minimal personal bias.

The upshot of this is that focusing on Alito’s position on abortion is both a theoretical and pragmatic mistake. Demanding Alito support Roe despite it’s obvious lack of justification on any conservative judicial philosophy further undermines the idea that the supreme court should apply principled legal interpretations not make policy decisions. Demanding Bush nominate someone with a liberal judicial philosophy who could coherently support Roe is a political mistake. Moreover, I think that this focus on Roe is somewhat selfish. Even if Roe is overturned it is quite unlikely that abortions will become illegal again though they will become significantly more difficult to receive. While I don’t want to trivialize the emotional and social consequences of waiting periods for abortions or a narrowed window or abortion it isn’t as significant as being jailed or even executed unfairly. Being raped in prison or otherwise severely mistreated should surely be of greater concern than having to carry a baby to term (just ask yourself which you would choose) and allowing police to terrorize minority and poor communities using drug laws is a serious concern as well. These are all issues on which the supreme court has significant influence but gain little attention compared to Roe. Likely because abortion is an issue relevant to non-minority middle class voters who realize that they or someone they know might need an abortion but are unlikely to be touched by the criminal justice system.

Unfortunately news stories have been circulating for some time suggesting Alito has a very narrow conception of defendant’s rights (though I agree with Alito that the fact the girl was 10 is not of legal importance). While the stories suggest he does strongly support free speech (though I’m not so sure) they also show he thinks almost none of these rights extend inside the prison. Most troubling was the apparent pattern of rarely ruling in favor of a “criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big businesses.” Still in and of themselves these decisions were not enough to make me oppose Alito. It made me suspect that he was allowing a pro law and order view to influence his legal analysis but it was possible he had some principled legal interpretation which mandated these results.

What finally convinced me Alito was doing more than consistently applying a philosophy which happened to construe the rights of defendants narrowly was this report from a clerk who served in the Third Circuit with Alito. Apparently in addition to merely ruling in favor of the prosecutor in this case Alito actually went out and did research to manufacture a new argument for the prosecutor. Whether or not judges should ever take such an active role (I think they should when the defendant has inadequate representation) Alito’s action is troubling as there is no evidence of him going to similar efforts for defendants, something I expect would have been trumpeted by his defenders to counter accusations Alito is pro-government. Additionally the argument Alito manufactured for the prosecution was a procedural argument, he pointed out the defendant hadn’t exhausted his options in state court, making it highly unlikely his additional effort was motivated by some concern over overlooked evidence or other substantive issues. So unless you believe Alito feels so strongly about procedural bars to appeal that he goes far out of his way to make sure they are enforced it is hard to avoid the conclusion that he was motivated by a desire not to see the defendant overturn his death sentence. Since it is far more plausible that someone went to great effort to prevent a murder from escaping justice than to enforce a rule designed to avoid overburdening the federal court system I can’t avoid thinking Alito is indulging in outcome oriented judging, a thought which is quite disturbing given his apparent pro-government leanings.

Admittedly this is not proof that Alito is particularly willing to inject his personal prejudices but it makes it far too probable for comfort. The prospect of a conservative supreme court justice who searches for legal justifications of his preferences instead of trying to interpret the constitution in good faith is too disturbing to risk. Moreover, if Alito is willing to cloak the real motivations for a decision in apparently objective legal reasoning might he not be willing to cloak his real legal beliefs in order to get on the supreme court? Overall the risk that Alito will use the supreme court to further his own policy preferences seems too great and there are other conservative justices who will apply their legal philosophies in good faith.