Monday, October 31, 2005

Right = 'Far Right'

Like Julian Sanchez and others, I have really no sense that those who've taken up the task of inveighing against Judge Alito are basing their criticisms on any decisions or certain beliefs of his.

Reading this Slate article, I'm immediately distracted by the first sentence - since when did opposition to abortion become skewed to the "far right"? I'd hazard a guess that many moderate Republicans were pleased as punch with Alito's dissent in Casey. A minor point. But I really have no idea what to make of the implication that Alito's contrast to O'Connor in philosophy and politics is an inherent problem:

"And Alito's split with O'Connor involves not only abortion but also marriage. She worried about wives who might be victims of domestic violence. He put first the rights of husbands to know what their wives are doing."

I can already hear Senator Schumer parroting this sort of charge. The contrast would be worrisome if it had anything to do with the legal logic that generated the decision in question. It seems to me that Alito's intellectual emphasis was toward a deference to precedent (the operative precedent being Roe), and not on attending to the resolution of hypothetical conflicts that might arise from restricting abortion access. Isn't this essentially what pro-choice courtwatchers have asked for? His controlling precedent in his dissent was the text of Roe itself, and in arguing for spousal consent, he appears more than attentive to the issue of how it submits to this precedent. So how exactly does this presage a dismantling of abortion rights? Is a "husband-centered" legal perspective on Roe really likely to be the tactical key to the "far right" blitzkrieg on the venerable institution of abortion?

Those of us who think Randy Barnett should be an inevitable shoo-in for the Supreme Court most likely will find good reason to heap criticism on Alito. (For some counterpoint, check this out from the Competitive Enterprise Institute. Soothes the mind a little.) The first thought that came to my mind was what the interval between Harriet Miers' nomination and Alito's says about President Bush's legal philosophy. No reiteration is needed there.


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