The battle is on (San Francisco Chronicle)

November 1, 2005
EDITORIAL
The battle is on

THE SELECTION of Judge Samuel Alito for the U.S. Supreme Court is going to be every bit as contentious as the failed nomination of Harriet Miers. This time, however, President Bush won't have to ask his most conservative base of supporters to put their faith in his judgment. They're applauding -- loudly. Unlike Miers, the 55-year-old Alito is a veteran appeals court judge with a long paper trail of decisions to offer insights into his judicial philosophy and inclinations on some of the major constitutional issues of our time. Some of those rulings should be of great concern to Americans who believe in a fundamental right to privacy as well as the ability of Congress to pass laws on health and safety issues that require a national solution.

A right to privacy is the underpinning of the 1973 Roe vs. Wade ruling that guaranteed a woman's right to abortion. As a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, Alito in 1991 voted to uphold a Pennsylvania law that would have significantly undermined that right by requiring spousal notification. Fortunately, Alito was the only judge on that appellate panel who did not see the clear unconstitutionality of the husband-notification requirement -- and it was ultimately struck down by the U.S. Supreme Court.

Alito was also the sole dissenter in 1996 when the appeals court upheld the ability of Congress to prohibit individual ownership of fully automatic machine guns. Alito's reasoning in the machine-gun case could have enormous implications for how he might address a wide variety of issues. Alito argued, unsuccessfully, that Congress lacked the authority to regulate machine-gun possession because it was not directly related to interstate commerce.

Right-wing ideologues have been using similarly narrow interpretations of the Commerce Clause to try to shoot down other environmental and public-safety laws passed by Congress. It is critical to remember that Alito would be succeeding Justice Sandra Day O'Connor, the first woman to serve on the high court and a conservative with centrist sensibilities who was willing to look at issues with a tough-minded independence. She was the swing vote on many issues, including rulings that upheld abortion rights, affirmative action and the ability of Congress to protect public health and safety...

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/11/01/EDGFTFG41T1.DTL