The Conservative Cat

Our favorite radio talk-show host-- former Supreme Court clerk Laura Ingraham-- will be all over this story for the next few days. (A reliable free stream of her daily show is available here from 9am to noon ET.)

The most common Alito decision mentioned in stories about his career is his dissent in the Third Circuit decision on Planned Parenthood v. Casey. Alito argued that a provision requiring a married woman to notify her husband prior to the abortion did not violate the privacy clause. The Supreme Court later established a new criterion for laws modifying abortion rights-- the standard of undue burden-- and struck down the husband-notification clause as an example of such a burden.

Alito is a strong proponent of free speech, which means he may offer some hope of protecting blogs from campaign finance laws, and freedom of religion, which means he may be helpful in slowing the march to erase Christianity from the public square. Among his decisions relating to these rights:

• A majority opinion in ACLU vs. Schundler, allowing a holiday display that included a nativity scene, a menorah, and Frosty the Snowman.
• A majority opinion in Saxe v. State College Area School District arguing that non-vulgar private speech by students did not constitute sexual harassment if it did not disrupt a student's ability to learn. The case in question involved a student's right to state that homosexuality is a sin.
• A majority opinion in Fraternal Order of Police v Newark Police Department in which a policy prohibiting police officers from growing beards was struck down because it did not allow exceptions for religious practices.
• A majority opinion in Edwards v California University of Pennsylvania arguing that colleges have the right to set standards for curriculum materials, arguing that the University, not Edwards, is the speaker when he is teaching in the University's name, and therefore curriculum standards are a legitimate expression of the University's free speech rights.

While reading Alito's opinions during the research phase of this article, I was struck by his repeated use of precedent and his reasonable interpretations of the letter of the law. Although I am not a lawyer, I am a superior life form, and therefore I think I'm qualified to hold this opinion. I am also encouraged by the irrelevance of the initial Democratic attacks against him. According to Senate Minority Leader Harry Reid:

The nomination of Judge Alito requires an especially long hard look by the Senate because of what happened last week to Harriet Miers. Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people.

And from Democratic political consultant Jim Jordan

It's a pretty predictable move from a politically crippled president. Toss out a judicial extremist to pacify his base and provoke a fight that he hopes changes the subject away from indictments and Iraq and Katrina and a soft economy.

That kind of rhetoric actually sounds far more extremist than any of Alito's opinions. Future complaints, however, will probably focus on Planned Parenthood v. Casey, which will be seen as evidence Alito poses a danger to Roe v. Wade. Yet Alito did not try to overturn Roe v. Wade, he merely argued in favor of a restriction on the abortion process. A Pew Research report puts most of the public is in exactly that position: 65% of the public opposes overturning Roe, but a majority think there should be more restrictions on it.

My priority, however, will still be the same: it's time for the Republican leadership to come down clearly and fearlessly in favor of a court that interprets the law without changing it. Our liberties are not protected by God, by a covenant with a King, or by the fact we can vote: they are protected by the limits set on government in the Constitution, and quite frankly, a flexible, living Constitution is just not safe.

Respectfully submitted,

Ferdinand T. Cat