Alito: Unacceptably Mainstream

Thursday's Editorial   —   Posted on January 26, 2006

(by David Limbaugh, HumanEvents.com) – Liberal fringe groups, politicians and editorial writers have been coming out of the woodwork urging the Senate to reject the nomination of Samuel Alito to the Supreme Court because, they say, he is outside the mainstream.

The New York Times characterizes Judge Alito’s views as “radical.” In assessing its claim, we should know whether the paper is talking about his judicial or political philosophy. If the Times accepted the court’s role as an interpreter, not maker, of laws, Alito’s political views would be irrelevant.

But they matter enormously to liberals. They want judges who are political and judicial liberals — that is, judges who will bastardize the Constitution to impose the liberal policy agenda. Judge Alito fails both tests.

Though presumably a political conservative, he would not legislate a conservative policy agenda from the bench. But this provides little comfort to liberals because if Alito, in dispassionately interpreting the Constitution, would roll back any of the court’s liberal, activist decisions, he is a menace.

The possibility that he could vote to overturn Roe vs. Wade makes liberals apoplectic. Since he won’t promise to misread the Constitution to contain a federal right to privacy, he is an extremist.

Isn’t it interesting that liberals don’t even bother any longer to defend Roe as good law? Even they know the Supreme Court manufactured out of whole cloth the constitutional right to privacy.

Instead, they have developed a latter-day affinity for stare decisis, or “established” precedent. But isn’t it odd to hear zealous proponents of a living, breathing Constitution demanding that we rigidly adhere to bad law because it is now institutionally enshrined?

The truth is, they couldn’t care less about precedent unless it conveniently supports the result they prefer. Someday, their loyalty to Roe may be put to an interesting test if one of the major bases upon which it legitimizes abortion — the unviability of the “fetus” — is rendered obsolete, as some argue it is already, by medical and technological advancements.

Even if Alito were a conservative judicial activist, which he clearly is not, he still wouldn’t be as extreme as the liberal activist judges already sitting on the court who have no reasonable justification other than blind adherence to flawed precedent to preserve the federal right to privacy. The pro-Roe judges not only have no constitutional basis to uphold Roe, but the effect of their rulings is to deprive the people of their sovereignty on the issue. If liberals are so darn sure pro-abortionists occupy the mainstream, they should have nothing to fear in returning the issue to the states to be decided democratically.

Alito is also tarred as an extremist because, in the words of the Times, “he has a radically narrow view of Congress’s power.” Their proof? “He argued that Congress exceeded its authority when it passed a law banning machine guns.” Translation: He had the audacity to rule that the Constitution means what it says in giving Congress the power to regulate interstate, not intrastate, commerce. Liberals, who want to confiscate our guns, call Alito “extreme” for treading on their “right” to trample the Second Amendment and expand the Commerce Clause beyond recognition.

Most preposterously, liberals contend Alito has “a radically broad view of the president’s power.” Unless you agree with them that a renegade Supreme Court should continue to twist the Constitution to give Congress unfettered, extra-constitutional power over interstate commerce, you are an extremist.

Unless you believe the executive branch cannot order that terrorist detainees be held indefinitely in time of war as enemy combatants, but that they should be pampered with the full panoply of civil rights accorded U.S. citizens, you want to make the president a dictator.

Unless you believe President Bush is operating as Big Brother in conducting warrantless eavesdropping only on Al Qaeda communications and only for the purpose of national security and not law enforcement, you are an extremist. One wonders precisely what expectation of privacy any American-residing knucklehead could possibly have in conversing with an international terrorist.

The Times also warns us, ominously, that Judge Alito’s gavel would always favor the privileged over the disadvantaged. “Women, racial minorities, the elderly and workers who come to court seeking justice should expect little sympathy.” In addition to the utter absurdity of this charge, would someone please get word to the Times that the court is not supposed to be a dispenser of sympathy?

On second thought, don’t bother because they don’t care; they have no respect for the proper role the judiciary is assigned under the Constitution. They view it as a third policy-making branch to impose the liberal agenda. And unless you agree, you’re a dangerous extremist, far outside the mainstream.

Mr. Limbaugh is a nationally syndicated columnist and author of Absolute Power and Persecution.

Copyright © 2006 HUMAN EVENTS, posted Jan. 24, 2006.  Reprinted here with permission from Human Events and David Limbaugh.  Contact Mr. Limbaugh at humanevents.com or DavidLimbaugh.com.

Questions

To be able to form your own opinion on this issue, you must understand what the Supreme Court controversy is all about.

Read the following three paragraphs that explain the difference in the opposing views on the role of a judge:
The term “judicial restraint” refers to the idea that the role of a judge is not to make policy or establish new legal rights, but to interpret the law as written in the United States Constitution or in statutes passed by the legislature. Because the will of the people is best expressed through legislative bodies, judges must strive to adhere to the law as written even if, at times, the law is insufficient to deal with certain circumstances or conflicts with the judge’s personal political views.

“Judicial activism,” by contrast, refers to results-oriented judging, whereby a judge decides the outcome of a case based not on the law as written, but on his or her conception of what is just or fair. “Judicial activism” is often improperly confused with the power of “judicial review,” which is the power of the judiciary to invalidate statutes that are in conflict with the United States Constitution. The fact that a judge frequently invalidates unconstitutional laws may make him “active” in the dictionary sense of the term, but it does not necessarily make him a “judicial activist.” To the contrary, a “judicial activist” is a judge who creates new rights not expressly granted by the Constitution or by statute or who invalidates laws, not because they conflict with express textual mandates, but because the judge views them as bad public policy.

Although the term “judicial restraint” is often associated with political conservatism, and “judicial activism” often associated with political liberalism, they are not properly categorized as such. “Judicial restraint” and “judicial activism” refer to the process or method a judge uses to reach a particular decision, not to the political ramifications of that decision. Political liberals and political conservatives are, at least theoretically, equally capable of exercising restraint on the bench. By the same token, judicial activists may use their authority to achieve either conservative or liberal results. As such, the terms “judicial restraint” and “judicial activism” are neither inherently “conservative” nor inherently “liberal.”
From “A Primer on Judicial Restraint…” found at JudicialNetwork.com (link is no longer active)

The main idea of David Limbaugh’s commentary is that the critics of Samuel Alito do not agree with the role of the judiciary established by the U.S. Constitution (under such, a judge should practice JUDICIAL RESTRAINT).  Rather the critics favor a politically liberal judge who practices JUDICIAL ACTIVISM.

QUESTION:  With which of the following points made by David Limbaugh do you agree?  Explain your answers.

  • If the Times accepted the court’s role as an interpreter, not maker, of laws, Alito’s political views would be irrelevant. (para. 2)
  • Though presumable a political conservative, he [Alito] sould not legislate a conservative policy agenda from the bench. (para. 4)
  • If liberals are so darn sure pro-abortionists occupy the mainstream, they should have nothing to fear in returning the issue to the states to be decided democratically. (para. 9)
  • …the court is not supposed to be a dispenser of sympathy (para. 14)
  • [the Times] has no respect for the proper role the judiciary is assigned under the Constitution.  They view it as a third policymaking branch to impose liberal agenda.