Wednesday, November 16, 2005The revelation of Alito's personal views about abortion, civil liberties, and civil rights is no revelation at all. We all knew that Alito was a wingnut - this just confirms it. What I find bizarre is the reaction not of the left ("we told you so") but of the right ("this doesn't change anything"). Conservatives would have us believe that, since the 1985 application form was for the purpose of getting a White House job, the information therein isn't really applicable to Alito's candidacy for the bench. His role in the Reagan Administration was that of an advocate, while his prospective job now is for that of a judge. Since these are two very different roles, the criteria he presented in the first simply doesn't apply to the latter - as a judge, his personal views don't matter. As an advocate, they did.
This is a very curious sort of reasoning. I could take the cheap shot and say that the conservative argument implies that Alito will simply say anything he needs to in order to get a job, but that would be beneath me. :) More substantively, the conservative argument does assert that Alito's position in 1985 about Roe's constitutionality has no bearing in 2005. They would place the burden of proof on us, his critics, to demonstrate his falsehood. But this is an example of the "burden of proof" fallacy - the burden is not on us to demonstrate why he is not qualified for the Supreme Court, it is up to him to prove that he is qualified. He needs to explain to the world what has changed in the last 20 years to alter his thinking about Roe - if it has altered at all (which of course it hasn't).
What should happen is that in the hearings Alito should be forced to explain whether he still believes Roe was wrongly decided. If he doesn't, we should assume that his position is unchanged. The absence of evidence for a change should be proof that there has been no change. The same questions should be applied with regard to the entire corpus of the Warren Court (which he rejected). If Alito doesn't answer, of if he forthrightly explains why he rejects the last 50 years of jurisprudence, he has to be rejected on the grounds that he is simply too far out of the mainstream. In other words, that he is a kook.
The current debate is just one more example of what has gone wrong with the appointment process. Presidents have been granted such deference in their nominations that we must prove their utter corruption or incompetence in order to defeat them. Their views on the law and the experience have been made off limits. The result is that the "advice and consent" provision in the Constitution has been in any practical sense repealed. There is no longer any advice, and we must reach "extraordinary circumstances" if we wish to withhold consent.