The next justice

In one respect, Samuel Alito is a more reassuring nominee even than John Roberts was. Alito has a much longer track record as an appellate judge than Roberts did--and that track record suggests a deep understanding of the important yet "limited role that our courts play in our constitutional system" (as he remarked in accepting the nomination). His opinions marry sound judicial philosophy with careful legal craftsmanship. President Bush deserves credit for having the good judgment to nominate him.

Unlike the nomination of Harriet Miers, this nomination can be expected to play out predictably. Alito will have the enthusiastic support of conservatives. The Left began distorting his decisions within minutes of his nomination, presenting his vote to uphold a spousal-notification regulation as proof of inveterate hostility to Roe v. Wade. Alito may well end up voting against Roe and restoring democratic decision-making authority over abortion. But his decision on spousal notification has little bearing on the question.

Alito tried to apply Justice Sandra Day O'Connor's "standard," allowing regulations that do not place an "undue burden" on the "right" to abortion. He thought that four regulations, including a spousal-notification requirement subject to certain exceptions, could be allowed under that standard. In reviewing his decision, O'Connor and other justices agreed with him about three of those regulations, but concluded that spousal notification presented an undue burden. The undue-burden "standard" is not much of a standard at all. It was, instead, a typical bit of O'Connorite jurisprudence, depending for its application on the subjective impressions of a judge. Alito can hardly be blamed for not predicting where O'Connor's whims would take her.

Perhaps the legal niceties will be lost on much of the public. The underlying policy issue does not seem to be promising ground for the Left: Far from fearing spousal-notification laws, most Americans favor them.

In another case used to indict Alito, he tried to apply a recent ruling by the Court on federalism. The Court had ruled that a ban on guns in and near schools was not a proper exercise of its power to regulate commerce among the states--although Congress could pass other laws, pursuant to other constitutional powers it possesses, to accomplish the same end. Alito ruled that the Congress, similarly, could not ban machine guns in the precise way it did. As it turned out, Alito was more serious about applying the high court's precedents than the high court itself turned out to be. Changing its mind has been this Supreme Court's prerogative, but lower courts are supposed to stay faithful to the precedents they have been given.

The world has changed since 1987, when Robert Bork's last name became a verb. The Republicans hold the Senate. We do not have to rely on the diligence and fastidiousness of the Washington Post and New York Times' to clear up disinformation about the nominee. We suspect that liberals are going to discover to their chagrin that they have been right all along: You can't turn back the clock.

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