The Right Coast

November 15, 2005
Wrong answer
By Tom Smith

I think this may have been a bit of a misstep by Alito. If he was just "seeking a job," what is he doing now? An unfriendly observer could infer he tailors what he says to try to get the job he is seeking. Which of course no one should ever do, and hardly any of us has ever done. Better would have been to say, he was conservative then, but imply without saying that now that he is older, he is more moderate, and secondly, what he did say, that is that his personal political views are in any event beside the point, since as a judge his job is to apply the law, not his personal views.

On a different, but related point, it is interesting that Feinstein does not seem to be taking the line that Alito is out of the mainstream, which is what we are hearing from some at Yale Law School, for instance. Ackerman says Alito is a "radical," Gordon says he is "too . . . conservative." But that does not seem to be the line coming out of Senate Democrats, at least not so much. It is as if they realize the attempt to portray plain old conservatives as exotic, bizarre, out of step kooks just won't work the way it did back when Borking was just being invented. 1987 was a long time ago. People know what judical conservatism is, in fact, even the left now pays lip service to judges' "applying the law, not making it on the bench." In fact, the attack on Alito seems largely to come from the angle that he would try to unsettle the law by overturning Roe, as if to say, he is not really a conservative. Yet, that does not seem a very promising line of attack, given that Alito's record does seem to bespeak a lot of little "c" conservatism, and his personality seems modest and unassuming, like he is one of Nature's conservatives. It's hard to credit Bush with a brilliant nomination after Miers, but it may turn out to be one. Of course, we shall have to wait and see.