MR. JUSTICE ALITO?

By William Fisher

Despite the enormous challenges facing the United States – education, health care, poverty, church and state, race relations, terrorism, Iraq, prisoner abuse, budget deficits, government corruption and inefficiency, to name but a few – a growing number of authorities are finding it revealing that the nomination of Judge Sam Alito to the Supreme Court appears to have come down to a single issue: abortion.

These authorities say the debate over this issue has become not only a thinly-veiled ‘litmus test’ for membership on the High Court, but a barometer of how sharply divided the U.S. is on social issues and the political clout the religious right has achieved over the last two decades.

Since his nomination by President George W. Bush last month, Alito has been engaged in ‘courtesy visits’ with members of the Senate Judiciary Committee, which will conduct hearings on his confirmation beginning in early January.

In these meetings, the word abortion has been studiously avoided by most, with the issue shrouded in such euphemisms as the right to privacy. But the question really being asked by senators on both the right and the left is: Can Judge Alito be counted on to vote to overturn the 1973 Roe versus Wade Supreme Court decision that established a women’s right to have an abortion?

The centrality of this issue was seen a month earlier in the withdrawal of Pres. Bush’s first Supreme Court nominee, White House Counsel Harriett Miers. Ms. Miers was the subject of an aggressive revolt by religious right-wingers – Mr. Bush’s base – who raised doubts that Ms. Miers commitment to reversing Roe v. Wade was strong enough to gain their support.

The basis of the intense interest in Alito’s nomination is that, if confirmed by the Senate, he would replace the retiring Justice Sandra Day O’Connor, a “pragmatic conservative” who has often represented the swing vote in 5-4 court decisions.

Today, when conservative Republican senators emerge from their private meetings with Judge Alito, they can barely contain their glee. Sen. Sam
Brownback, the conservative Kansas Republican and staunch opponent of abortion rights, said, "This is the type of nominee I've been asking for," adding that he was convinced that Judge Alito was "open to a review of cases." Brownback is one of the senators who led the successful anti-Miers campaign.

Senators in the ideological center have largely shown a cautiously positive attitude on the nomination. Typical is Sen. Joseph I. Lieberman, the centrist Connecticut Democrat who backs a woman's right to abortion. Lieberman said he was encouraged by what he heard from Judge Alito.

Recounting their conversation, Sen. Lieberman said Alito’s view is that
“Roe was precedent on which people, a lot of people relied, that it had been precedent for decades and therefore deserves great respect."

Other Senate Democrats have apparently been at least provisionally satisfied that Alito’s respect for legal precedent and “settled law” and would make him unlikely to reverse Roe.

Waiting in the wings is a phalanx of left- and right-leaning special interest groups, geared up – some say eager -- for a media and lobbying battle to move the public and the Senate to their different viewpoints. Some have already spoken out.

For example, the left-leaning Alliance for Justice opposes Alito’s nomination. The advocacy group says, “Influential segments of the radical right torpedoed the nomination of Harriet Miers because she didn’t have a proven record of being a 'movement’ conservative, dedicated to carrying out their political agenda on the bench. The right is now giddy about the nomination of Samuel Alito – undoubtedly because he has such a record. Judge Alito would fundamentally change the balance of the Supreme Court, tipping it in a direction that could jeopardize our most cherished rights and freedoms,” stated AJ president Nan Aron.

On the religious right, Focus on the Family Action founder and chairman James C. Dobson, said, "Perhaps the most encouraging early indication that Judge Alito will make a great justice is that liberal senators such as Harry Reid and Charles Schumer and leftist pressure groups such as People for the American Way and Planned Parenthood have been lining up all day to scream that the sky is falling. Any nominee who so worries the radical left is worthy of serious consideration.”

But that position is not unanimous among religious groups. For example, the newly-formed progressive organization, The Christian Alliance, told IPS, “It is hard to imagine how someone whose vision of justice concludes that a woman has to get her husband's permission to make a decision about her own reproductive health, or that women in the workforce are not unfavorably affected by pregnancy, can effectively sit as a judge on the nation's highest court.”

Rev. Tim Simpson of the Alliance added, “I cannot see how any of the things that he is currently telling Senators during his ‘moderating makeover’ can be taken seriously.”

Observers say that if Alito has managed to convince the right and at least neutralize the left on where he would like come down on the abortion issue, one side or the other is wrong. “They can’t both be right”, said a prominent constitutional law professor who declined to be named.

One reason for the apparent confusion over Alito’s position is his limited but mixed record on this issue.

The best known of Judge Alito's abortion opinions is his dissent in Planned
Parenthood v. Casey, the case the Supreme Court later used to reaffirm and
modify the Roe holding. In Casey, Judge Alito's court reviewed a number of Pennsylvania abortion restrictions and unanimously upheld all but one -- a provision requiring notification of husbands before married women received an abortion.

The provision provided an exception for women who feared physical abuse, but the court majority said it could still constitute an undue burden to women concerned about psychological or economic coercion, harm to their children, or sharing with other relatives what they intended to keep secret.

Judge Alito dissented, reasoning that married women were a minority of those seeking abortions and married women who didn't tell their husbands were a very small minority of those. He concluded that because only a small percentage of women overall would be affected, the provision did not constitute an undue burden to the right of abortion in general.

In at least one case, Judge Alito voted on the pro-choice side of litigation
that split his court. In 1995 he agreed that Medicaid rules that required funding for certain abortions in cases of rape or incest or when the mother's life was at stake, despite contrary Pennsylvania legal restrictions. A judge committed to stop abortions could easily have found a way to an opposite conclusion.

It is unlikely that Alito’s confirmation hearings will shed much more light on how he will rule on abortion-related cases; he is virtually certain to decline to respond to such questions because the issue may well come before the Supreme Court.

So the senate and the special-interest lobbying groups will have to content themselves with trying to read the tea leaves, with the abortion issue seemingly eclipsing all others.