Michael Gaynor
November 14, 2005
Confirm Alito, replace Ginsburg with Wendy Long
By Michael Gaynor

Of all people, Bill Sammon of The Washington Times did the pro-abortion lobby's research for it. Mr. Sammon's brief article, titled "Alito Rejected Abortion as a Right," accurately reports that Judge Alito is personally pro-life (as his mother told the press). It reads as follows:

"Judge Samuel A. Alito Jr., President Bush's Supreme Court nominee, wrote that 'the Constitution does not protect a right to an abortion' in a 1985 document obtained by The Washington Times.

"'I personally believe very strongly' in this legal position, Mr. Alito wrote on his application to become deputy assistant to Attorney General Edwin I. Meese III.

"The document, which is likely to inflame liberals who oppose Judge Alito's nomination to the Supreme Court, is among many that the White House will release today from the Ronald Reagan Presidential Library.

"In direct, unambiguous language, the young career lawyer who served as assistant to Solicitor General Rex E. Lee, demonstrated his conservative bona fides as he sought to become a political appointee in the Reagan administration.

"'I am and always have been a conservative,' he wrote in an attachment to the noncareer appointment form that he sent to the Presidential Personnel Office. 'I am a lifelong registered Republican.'

"But his statements against abortion and affirmative action might cause him headaches from Democrats and liberals as he prepares for confirmation hearings before the Senate Judiciary Committee, scheduled for January.

"'It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly,' he wrote.

"'I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.'

"A leading Republican involved in the nomination process insisted that this does not prove Judge Alito, if confirmed to the Supreme Court, will overturn Roe v. Wade, the landmark 1973 Supreme Court ruling that made abortion a constitutional right.

"'No, it proves no such thing,' said the Republican, who spoke on the condition of anonymity. 'In fact, if you look at some of the quotes of his former law clerks, they don't believe that he'll overturn Roe v. Wade.'

"Judge Alito sided with abortion proponents in three of four rulings during his 15 years as a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, usually based on existing law and technical legal issues rather than the right to abortion itself.

"'The issue is not Judge Alito's political views during the Reagan administration 20 years ago,' the Republican official said. 'It's his 15 years of jurisprudence, which can be evaluated in hundreds of opinions. And in none of those opinions is it evident what his political philosophy is.

"Ruth Bader Ginsburg had a long history of advocacy on behalf of liberal causes, but she was evaluated on her 13-year record as a federal judge and her jurisprudence, not her belief that there was a constitutional right to prostitution or polygamy.'

"Although Judge Alito's conservatism has not been particularly evident in his legal rulings, it was abundantly clear in his job application 20 years ago.

"'I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values,' he wrote.

"'In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate,' he added.

"The document also provides the clearest picture to date of Mr. Alito's intellectual development as a conservative.

"'When I first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley Jr., the National Review, and Barry Goldwater's 1964 campaign,' he said. 'In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.'

"Republicans are relishing the opportunity to defend Judge Alito's support for judicial restraint, saying it puts him squarely in the majority of American public opinion.

"As evidence, they pointed to public outrage over a 2002 ruling by the 9th U.S. Circuit Court of Appeals in San Francisco that said the phrase 'under God' in the Pledge of Allegiance was unconstitutional. More recently, the Supreme Court has ruled that government can seize property and give it to a private party for the sake of the 'public good.' Other Supreme Court rulings have cited international law.

"'We're delighted to have a debate over judicial philosophy and the proper role of courts in America,' a Republican strategist said. 'That's a debate the Republican Party wins every time.'

"Republicans also pointed out that Judge Alito's devotion to Reagan administration policy was reminiscent of those of Supreme Court Chief Justice John G. Roberts Jr., who also served in the Reagan administration and was confirmed in September by all Republicans and half the Democrats in the Senate.

"'The notion that working for the Reagan administration is a disqualifier for serving on the Supreme Court was decisively refuted by 78 votes earlier in the summer when John Roberts was confirmed,' said the official close to the Alito nomination process."

Wendy E. Long, counsel to The Judicial Confirmation Network (www.judicialnetwork.com), promptly issued the following statement regarding Mr., Sammons' report:

"Judge Alito's statement in 1985 reflects a legal view that has been widely held among judges, lawyers, and legal scholars from across the political spectrum, who have widely divergent views on the proper abortion policy. That legal view that the Constitution is silent on the question of abortion, and does not mandate either a pro-life or a pro-choice policy, but rather leaves the matter of abortion to be decided by the people's representatives instead of the courts is a view shared by the late Chief Justice William Rehnquist, the late Justice Byron White (a Democrat and Kennedy appointee), and the late federal Court of Appeals Judge Henry Friendly, among many others.

"Moreover, that Judge Alito holds this view does not tell us how he will rule on specific cases that come before the Court. He has said, for example, that it is not enough to overturn a prior case just because it was wrongly decided.

"For pro-choice extremists and other liberal activists to say that this legal statement by Judge Alito in 1985 somehow disqualifies him from serving as a Supreme Court Justice is absurd. Justice Ginsburg and Justice Breyer had taken clear public positions to the contrary, and no one argued that those positions should be held against them. The more mainstream, intellectually respectable position in fact is the one that Judge Alito expressed in 1985."

'In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly [as to]...the Establishment Clause...."

God bless Judge Alito! He belongs among the Supremes. The United States Senate should quickly confirm his nomination. Shortly after World War II, the Supremes suddenly and senselessly expand the Establishment Clause beyond any possible recognition by the Founders, leading to a plethora of problems. The sooner strict constructionists reverse the judicial coup achieved by secular extremist judicial activists, the better. It is as plain as a fire on a hill on a clear night that Judge Alito gets that.

"The more mainstream, intellectually respectable position [on abortion] in fact is the one that Judge Alito expressed in 1985."

God bless Ms. Long! She belongs among the Supremes too. See HARRIET MIERS NOW, THEN WENDY LONG. Justice Ginsburg, who resents America's long history as a Christian country and fantasizes about constitutional right status for prostitution and polygamy, should resign immediately to make room for Ms. Long.

Ms. Long rightly did what strict constructionists all too often fail to do: (1) claim the mainstream, which seems to have been an advantageous place to be ever since Aristotle mumbled something about everything in moderation (without dealing with the implication that necessarily included moderation itself and thus was a logical impossibility), (2) identify pro-abortionists as the extremists, and (3) dismiss the judicial activist opposition to Judge Alito's confirmation as "absurd" (instead of mincing words). (Ms. Long did identify the pro-abortionists as "pro-choice" instead of pro-abortion, as though giving birth and killing an unborn baby each were reasonable choices (like vanilla and chocolate), but I forgive her.)

Technically, Mr. Sammons' anonymous Republican and Ms. Long are right that Justice Alito's personal view in 1985 does not guarantee that he will vote to overrule Roe v. Wade as soon as the opportunity presents itself. But it is the pro-abortion forces who should be fearful that he will vote to overturn the judicial travesty created. Because Judge Alito is a sane, sound, sensible strict constructionist.

I repeat: America's Founders created a federal government that looked favorably on religious belief and private property, viewed them as good and necessary, and protected and encouraged them. People whose consciences dictate otherwise should never be forced to personally engage in religious expression. But neither should fear of offending their sensibilities prevent others from publicly expressing their faith. The nonreligious minority should not be permitted to impose their nonreligion on the religious majority or to replace the secular moderation envisioned by the Founders with the kind of secular extremism that would ban Ten Commandments displays in courthouses, Thanksgiving and Christmas as national holidays, "under God" from "The Pledge of Allegiance," voluntary nondenominational prayer from public schools, creches from winter holiday displays on public property, "In God We Trust" from America's currency and Congressional and military chaplains.

Justice Alito obviously appreciates that secular extremists have perverted the First Amendment's Establishment Clause to separate America from God, contrary to the intention of those who wrote and ratified the Constitution, the Bill of Rights and the Fourteenth Amendment. The Supremes need to be Americans who understand that and will do what is necessary to rectify the grave mistakes made the Supremes instead of cover them up by pretending that they were not grave mistakes.

With enough people like Judge Alito and Ms. Long on America's highest court, the Supremes will recognize and return to the Constitution the Founders intended. Government will be free to acknowledge God and to support religious belief generally, while always respecting the private right of conscience of individual Americans and never establishing an official religion. Private property will be respected, instead of put at risk of taking for a private purpose masquerading as a public one. And each state will set its own policy with respect to abortion. The so-called constitutional right to abortion being judicially created, by a de facto constitutional amendment adopted solely by presumptuous judicial activists, because a legitimate amendment to the same effect was not politically possible.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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