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Alito and the imperial presidency: the new Supreme Court nominee, Judge Samuel Alito, has supporters and detractors on both sides of the political divide because his judicial track record is mixed.

President Bush's October 31 nomination of appellate court Judge Samuel A. Alito, Jr. to fill Sandra Day O'Connor's seat on the U.S. Supreme Court was regarded well by Washington, D.C., beltway conservatives, skeptically by constitutionalists, and conspiratorially by liberal Democrats.

Liberal talk-show host and comedienne Stephanie Miller dubbed the Alito nomination "Operation Look the Other Way," because Bush announced the nomination on the Monday after Lewis "Scooter" Libby, Vice President Cheney's chief of staff, was indicted on perjury and obstruction charges.

Moreover, many on the left argued that Bush intends to "energize the base" of conservatives on his behalf by nominating a solid constitutionalist to the court in order to please rebellious conservatives who balked at his earlier nomination of White House Counsel Harriet Miers. In that scenario, the nomination would create a huge political fight that would restore Bush's ailing poll numbers and failing support among conservatives.

Skeptical constitutionalists have another scenario sketched out: Alito would preserve precisely the kind of big government "conservatism" embodied by President Bush. They believe Alito will oppose the Roe v. Wade decision on abortion, but otherwise be loyal to the view that the president should have more power. "Sam Alito is just what George Bush is looking for: a big government conservative who will almost always side with the government against the individual, and the federal government against the state," Fox News Channel commentator and former judge Andrew Napolitano told the Daily Princetonian of Princeton University for Oct. 31. Napolitano and Alito both attended Princeton as undergraduates in the early 1970s and have been friends ever since.

Later this year, the high court is slated to rule in the Rumsfeld v. Padilla case, which involves the critical issue of whether American citizens have the unqualified right to trial by jury or whether the president can imprison an American citizen forever without either a trial or even being charged with a crime. Though Alito won't be on the high court when the Padilla case is decided, it is cases such as this where a "big government conservative" who defers to the executive branch on critical individual rights could have a frightening impact on the survival of freedom in the United States.

All interested parties can make an argument attacking or supporting Alito, based on his record as a judge in the 3rd circuit U.S. Court of Appeals. Since his appointment in 1990, Alito's decisions have generally been upheld by the Supreme Court, alarming some conservatives. His deference to the Supreme Court led him to vote to strike down restrictions on abortion in three out of four cases before him.

However, Alito also has had some dissents that were not upheld by the Supreme Court. Alito ruled in the case of U.S. v. Rybar (1996) that a federal law against civilian ownership of submachine guns was unconstitutional because it had no connection with the federal government's power to regulate interstate commerce.

Prof. Robert C. Post of the Yale Law School told the Washington Post for November 6 of the Rybar case: "It shows a man who is strongly committed to the notion that the federal government is one of limited powers and is willing to limit that federal power."

The danger with judging Alito on his appellate court decisions is that conservative lower court judges generally rule in a way that would not be overturned by the Supreme Court. And there is merit in lower courts operating in sync with the Supreme Court in order to ensure swift and uniform justice.

Of course, judges swear an oath to preserve the Constitution, not to preserve the precedents of the U.S. Supreme Court. However, the practical reality is that judges who balk at Supreme Court activism from the bench are rarely--if ever--nominated to the high court.

To a certain extent, every Supreme Court justice nominee is like Forrest Gump's box of chocolates: you never know what you are going to get.

Hearings for the Alito nomination are slated to begin shortly after Congress reconvenes in early January, and as THE NEW AMERICAN goes to press, Alito's confirmation appears likely.
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Title Annotation:JUDICIARY
Author:Eddlem, Thomas R.
Publication:The New American
Date:Nov 28, 2005
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