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Shallow thought about the court
Scripps Howard News Service


November 02, 2005

Leftist pundits like to chuckle about how thin the thinking of conservatives is on the Supreme Court. But catch the act of the leftists - of Senate minority leader Harry Reid, minority pressure groups, various liberal blog sites and large numbers of editorialists - and you will find an ideological narrowness and shallowness of thought that would be laughable if not so sad.

What is perhaps the greatest fault they find in Samuel Alito, President Bush's most recent nominee for justice on the Supreme Court? Why, he isn't a woman. For that matter, he isn't Hispanic, either. Bush's previous nominee, of course, met the criterion of womanhood, but turned out to know very little about the Constitution and, as her various writings conveyed, had a mind of no particular depth or acuity. Reid liked her. He pushed for her.

But Bush dropped that nominee, Harriet Miers, owing largely to conservative criticism that, whatever you say about it, was not thin. The chief arguments against Miers was her lack of intellectual heft and stature as an analysts of constitutional issues. The best evidence was that her ideology was almost everything a conservative could hope for. On the question that tugs so hard at both left and right - the Roe v. Wade decision upholding the right of a woman to abortion - she was on the record as being against it.

The politically correct case against Alito that he is the wrong gender has nothing to do with merit, with how capable he might be. The downright stupidity of it can be seen if you imagine a college coach putting together a basketball team and saying well, for diversity's sake, we want a short, blond, blue-eyed center, because, after all, there are many short people in America, and this team should look like America. Yes, this person can't block shots and isn't much offensively, either, but he will go along well with a team that is half female, does have some tall people on it, represents a variety of religions, and, as much as was possible, has someone from all the largest racial and ethnic groups. Winning games? Not so likely.

Supreme Court decisions are a great deal more important than winning basketball games. A logical argument can be made that Bush could have found a highly capable woman or minority for the seat. But in a logical argument considerations of race or gender wouldn't take precedence over merit or judicial philosophy. I would personally have been delighted if Bush had nominated Janice Rogers Brown, an African-American woman, but the liberals would almost certainly have fought that nomination with a filibuster. Because of her libertarian beliefs, Democrats held up Brown's ascension to the U.S. Court of Appeals for two years.

It's conceivable that Alito will face a filibuster even though he has more experience on the bench that any Supreme Court nominee in 70 years, is highly regarded for his restrained, polite manner, and his written decisions are reputedly respectful of the Constitution, as well as incisive, intelligent and spare of ideological rambling or self-proud diversions from the meat of the issue. The trouble, from the point of view of the left, is that he respects the Constitution too much. He thinks, for instance, that the interstate commerce clause means what it says, that its purpose is to facilitate interstate commerce and not to empower the federal government to do anything it wants as long as it makes reference to the clause.

Some liberals are already referring to Alito as "machine gun Sammy" because he understood that a machine gun sale within a state had nothing to do with sales between states and that the commerce clause did not entitle Congress to outlaw the sale. That doesn't mean he is for machine guns. It means he is for the Constitution. Let go of faithfulness to this document, as the court so often has, and you let go of a long list of protections for the citizenry. Those on the left, by and large, feels themselves entitled to the sophistry that the Constitution can mean what they think it should mean, even when its meaning and language are perfectly clear and in opposition to their interpretations.

Bush deserves credit for backing off his mistake in nominating Miers and for turning to someone who has none of her deficiencies. If the left wants a fight on this, he should give it to them. The Constitution is worth it.


Jay Ambrose, formerly Washington director of editorial policy for Scripps Howard newspapers and the editor of dailies in El Paso, Texas, and Denver, is a columnist living in Colorado.
He can be reached at SpeaktoJay(at)

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