This brief look at the highlights of some of Judge Samuel Alito's decisions, from today's Washington Post, presents a troubling picture. Firstly, Judge Alito's dissents from his colleagues on the 3rd Circuit of the Federal Appeals Court have always been to take the most conservative view (admittedly, the 3rd Circuit is probably the among the most liberal in the nation). In addition, the pattern of his opinions illustrates a legal mind that usually sides against the interests of ordinary men and women in ways that constrict their rights and narrow their lives. In decisions involving death penalty appeals, the Family Medical Leave Act, abortion rights, the right of religious minorities, Judge Alito usually sides with those who would limit civil liberties, the right to privacy, separation of church and state and even the right of those accused of crimes to a vigorous defense when their very lives are at stake.
And George Will opines in this Washington Post column that liberals are in an untenable position in trying to stop Alito's nomination. According Will, they will be unable to counter the conservative wing's principled argument in favor of a strict constructionist approach to interpreting law. Will seems think that the liberals' only arguments are that it's unfair to pick a conservative like Alito to replace a moderate like O'Connor or simply that they wouldn't like the outcome of his decisions. And Will is right that the arguments he cites would be specious debating points at that.
However, he fails to consider that there is a very good argument that the Democrats can make, based every bit as much on judicial principle as any conservative argument.
A credible dissent can be made that there are other approaches to interpretation of the law that have nothing to do with attaining a preferred political outcome at any cost of principle. Democrats and liberals can counter the conservatives by stating that the Constitution is a living document that is meant to be interpreted in light of 21st Century realities which our founding fathers might never have considered. Also, too strict an emphasis on a literal interpretation can actually constrict even the intended meaning of those founding fathers. For example, you can argue, as conservatives have tried, that there is no right to individual privacy, laudable as such a right might be, guaranteed in the Constitution because there is no specific language in that document stating it clearly. However, a cursory understanding of the our founding fathers, the historical context in which they operated, and their other writings would convince others, less literal minded, that the intention of a right to privacy is indeed presumred throughout the Constitution, especially in the Bill of Rights.
Taking a more expansive view of interpretation of the law is both a legitimate and principledview that can be argued successfully.
And one thing I do agree with George Will about is that it is indeed time this country had that argument. Debating how we view the Constitution and how we interpret it, in light of the 21st Century, is long overdue. I join him in saying "let the debate begin."
We are not afraid of it.