The conservative case against Alito

http://www.dcexaminer.com/articles/2006/01/16/opinion/op-ed/09oped13adler.txt

January 16 '06
By Ben Adler
Published: Monday, January 16, 2006 9:47 PM EST

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A study by Yale University law professor Paul Gewirtz and recent Yale Law School graduate Chad Golder shows that those supposed strict constructionists are actually the Supreme Court's biggest practitioners of judicial activism. The study shows Thomas and Scalia to be the justices who are first and third most likely to rule congressional legislation unconstitutional (frequently overruling the judgment of the people's elected representatives is the essential definition of judicial activism). Alito's close adherence to their philosophy has earned him the nickname "Scalito." If conservatives mean what they say about opposing judicial activism, then they should be horrified at the prospect of another Scalia-like justice on the Supreme Court.


The same goes for executive power. Conservatives have always been suspicious of centralized power in Washington over individuals and their locally elected representatives. Many conservatives are upset at the Bush administration's abuse of executive power. Archconservative former U.S. Rep. Bob Barr, R-Ga., writing in the Jan. 9 edition of Time magazine, criticized Bush for wiretapping American citizens without a judicial warrant. And he applauded the Supreme Court for "slap Bush's hands when, after 9/11, he asserted authority to indefinitely detain those he unilaterally deemed "enemy combatants" ... without any court access."

Judge Alito, on the other hand, has shown subservience to the executive branch of the federal government. Ironically, it has fallen to liberal Sen. Ted Kennedy, D-Mass., to be the proverbial canary in the mine with regard to Alito's penchant for allowing the federal government unlimited law enforcement powers — something true conservatives, who have long decried excessive governmental power, especially federal power, should theoretically be up in arms over. It was Kennedy who grilled Alito during the hearings on his approval of federal marshals threatening a family of farmers at gunpoint while serving them an eviction notice caused by their money problems. Where were the right-wing heartland populists, so fond of sticking up for the traditional family farm when it is supposedly threatened by the estate tax, on that issue during the hearings?...


Ultimately the Alito nomination is a perfect test case for the conservative movement. Will it finally stand up to Bush, who has expanded the size, scope and power of the federal government? Will it form a coalition with liberals, based on its shared interest in protecting individual rights, to oppose this nominee? Or will it abandon the principles it has professed to hold dear in obeisance to the Washington Republicans who talk about limited government and freedom but actually expand government and trample civil liberties?...


Ben Adler is associate editor of CampusProgress.org.