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Alito, Why Do I Oppose Thee?

Abortion is one of the defining fault lines of American political life. Recently, gay rights and evolution have given it a run for its money in short little bursts, but in the end it’s abortion that splits the country more evenly, creates strange bedfellows in each direction, and calls up deep emotional passions on a perpetual basis.

Right now it is dominating the news coverage and activism and public perception of the Supreme Court confirmation hearings for Judge Samuel Alito. “Senators Unable to Draw Out Alito’s Views on Abortion” reads a representative Washington Post headline. Online polls ask if Alito’s 1985 memo in which he attacks the validity of Roe v. Wade should be the deciding factor in his confirmation. Noting the memo, and his defense of a Pennsylvania husband-notification law later ruled unconstitutional by the Supreme Court, Planned Parenthood is leading the charge against his confirmation with slogans like “Oppose Alito/Save Roe!”

On the other side, the newly created People for the Alito Way has peppered its rallies with speakers who regret having had abortions. (“Planned Parenthood cut and run” describes one participant in a PAW rally, a sure sign that the group’s own PR is quite suspect. Groups that have stared down blockades of abortion clinics are not afraid of a well-attended rally. But I digress.)

I would never say that I think a woman’s right to choose is not an important issue, or is not an important issue in this confirmation hearing. I shiver at the thought of having children in an era that has returned to back-alley abortions. Everyone who feels similarly might want to consider taking a long hard look at Alito’s record and giving their senators an earful (this week) about what they find there.

But should that be what this comes down to? I mean, haven’t many of us been fretting over the past several years about the denigration of the Constitution as a whole, the vast abuse of presidential powers, the erosion of civil liberties, the distortion of our laws to serve short-term and fear-based agendas? If the whole Constitution is basically scrapped, will it matter if the latest justice thought it contained a right to privacy and if that right to privacy protected abortion?

Even a quick perusal of the confirmation hearings’ early transcripts and other reporting reveals a whole pile of reasons to take a close look at Alito. In one disturbing example, Sen. Edward Kennedy reported that his review of Alito’s rulings showed Alito voting overwhelmingly on the side of large institutions and governments and against individuals, whether it be on cases of workplace discrimination or abuse of government power. Alito, as a lawyer, represented the government, remember. This hits directly on some of the most fundamental questions that Alito, if confirmed, would be facing.

Yes, a judge should be applying the law, like an umpire, not exercising his or her preferences. But when an umpire is calling several times more balls than strikes on the same pitchers as any other ump, or seems to have a track record of distinctly favoring certain teams over a long period of time, it is worthwhile to question that umpire’s worthiness for that role.

I don’t care what Samuel Alito’s personal views on abortion, race, war, or privacy are. It is true that those should not enter the realm of his decisions, and many justices have shown themselves able to do the hard work of applying the law even if they have a distaste for the results that produces.

However, personal views on issues and personal views on the law are different things. If the law and its intent were absolutely straightforward with no ambiguities, no unclear implications in modern situations that were unanticipated by its founders, no differing interpretations in the light of different value sets, then we wouldn’t need a Supreme Court. We wouldn’t have had Plessy v. Ferguson and then overturned it with Brown v. Board of Education. We wouldn’t have dissenting opinions.

So yes, an indication of this nominee’s values, this nominee’s basic interpretations of the Constitution, are absolutely fair game. We need to know, for example, is equal justice under the law his guiding value? Or is preservation of order or historical community moral standards? Attempts to discuss these things should not be silenced with protestations about how judges are not politicians. It’s true, they are not. But neither are they automatons.

And so, people concerned about the rule of law, not to mention the media, would do well to not leave Planned Parenthood swinging in the breeze as the lone voice of opposition, making Alito’s opponents seem doggedly single-issue. In fact, civil-rights groups like the NAACP, a host of environmental groups, labor unions and gay rights groups have all come out against Alito, questioning his inclination to protect the American citizenry on a basic level. Planned Parenthood deserves kudos for its work, but these other groups should be given equal air time.

Even more importantly in a world where many people expect the above coalition to agree, now what we need are the libertarians and the property rights folks, the good Republicans who were aghast to learn of domestic spying, and the patriots and the veterans who fought for an America that would never descend to torture. You may still be in a bit of shock, be reeling from the accumulated betrayals, but this confirmation could be complete by next Friday (Jan. 20). It is a short time frame in which a decision that will affect a generation or more will be made.

Let’s show the world, and our own leaders, that we do think about things other than abortion.

—Miriam Axel-Lute

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