Judges Should Represent the Law

When Samuel Alito, Jr. was nominated to the Supreme Court after Harriet Miers withdrew her name from consideration, many were pleased. Who wouldn’t be happy that a lackluster nominee with no experience in constitutional law and no record of judicial opinions has been replaced by a highly qualified one who has 13 years experience as a U.S. attorney, 15 years experience as a federal appellate judge and a record of upholding legal precedents? Representative Lynn Woolsey (D-CA) for one. She said, “Who will Judge Alito represent? He will represent white males who can afford to keep their wives at home while they work.” Woolsey does not understand that judges are not supposed to represent individuals, groups or causes. Legislators represent constituents. Judges represent the law itself. The Supreme Court is supposed to interpret laws and uphold the Constitution. Its job is not to strike down or uphold laws on the basis of popular opinion or the desires of interest groups. Additionally, it is not the high court’s function to invalidate constitutional, but unwise or unenforceable legislation. It is the function of legislatures to amend or repeal such legislation.

The aptly named Representative Louise Slaughter (D-NY) is also displeased with the Alito nomination. She referred to him as a “clear and present danger to the rights of women in America.” She and other abortion rights supporters take exception to Alito’s partial dissent in Planned Parenthood v. Casey in which he voted to uphold a Pennsylvania requirement that a woman notify her husband prior to having an abortion on the basis that it does not place an undue burden on the woman, (the law included exceptions to the notification rule). Alito’s interpretation of the reasonable requirement that a woman notify her husband that she plans to kill his child was correct by the legal definition of undue. Some Right to Life groups also question some of Alito’s rulings, notably Planned Parenthood v. Farmer. In that case, Alito voted to invalidate a New Jersey law that banned partial birth abortion because the Supreme Court had invalidated a similar Nebraska law. Although partial birth abortion is a barbaric, inhumane practice, the ruling of a higher court supersedes that of a lower court. Alito’s mixed rulings in abortion cases demonstrate his ability to base his decisions on legal precedent and the Constitution rather than on personal beliefs or public opinion.

Additionally, gun control advocates are unhappy with Alito’s record particularly his dissent in Rybar v. U.S. In Rybar, a gun dealer challenged the constitutionality of a federal conviction for the intrastate sale of two machine guns citing the Supreme Court’s decision in U.S. v. Lopez. In Lopez, the high court invalidated a federal law against gun possession in school zones because school zones do not qualify as interstate commerce. Alito argued that the Lopez ruling was applicable in Rybar. The interstate commerce clause has been expanded to grant Congress the power to regulate many areas not delegated to it by the Constitution. Our nation was founded on the principal of a limited federal government; a principal that included powers “reserved to the States respectively, or to the people.”

Judge Alito has a clear record of ruling that free speech including religious expression is constitutionally protected. In one such case, he ruled that a city could erect a holiday display that included a crèche, a menorah and Kwanzaa display. In another case, Alito ruled to invalidate a school policy which banned religious groups from distributing literature but allowed other student groups to do so. At a time when courts are confusing the free exercise of religion with establishment of religion, it is encouraging to have a Supreme Court nominee who knows the difference. Prevention of all exposure to religious expression because words such as G-d and Christmas may offend some people is tyranny by the minority. Our Constitution includes freedom of speech and exercise of religion. It does not include the right not to be offended.

Judge Alito’s confirmation hearings are scheduled to begin in January. Senate Democrats plan to question him about a possible conflict of interest in a 2002 case involving Vanguard. If it turns out that Alito acted unethically in that case, it will be a loss for America because his record demonstrates an interpretation of the Constitution as it was written. In recent decades, interpretation of the Constitution by the Supreme Court has been stretched beyond recognition in cases such as Griswold v. Connecticut, Roe v. Wade and Kelo v. New London. We must end judicial activism and return to the original meaning of the Constitution to preserve our liberties. In the words of Thomas Sowell, “The quest for cosmic justice via the judiciary - law as an ‘agent of change,’ as it is often phrased – quietly repeals one of the foundations of the American Revolution.” The Kelo decision that expands eminent domain powers was an alarming step toward the repeal of the American Revolution and the American dream.

Copyright Eva Ellsworth, 11/12/05, all rights reserved