Stuart Taylor at National Journal has an excellent analysis of charges by the Democrats that Judge Samuel Alito is outside the "mainstream" of American judicial thought. Among his numerous trenchant comments Taylor quotes from Alito's 1985 job application to the Reagan Justice Department:
Taylor then says this:
These are certainly the words of a Reagan conservative. But are they outside the mainstream? Somebody should tell The New York Times that Reagan won 49 states in 1984. And that in exit polls, many more Americans identify themselves as conservatives (34 percent in 2004) than as liberals (21 percent).
Generalities aside, let's locate Alito, and [Ruth Bader] Ginsburg, on the spectrum of public opinion on three of the hottest issues: abortion, racial preferences, and religion.
If Alito is outside the mainstream on abortion, then so are the very large percentage of constitutional scholars -- including many pro-choice liberals -- who agree that Roe was a judicial usurpation of legislative authority with no basis in the Constitution. Even Ginsburg herself wrote (also in 1985) that Roe was "heavy-handed judicial intervention [that] was difficult to justify and appears to have provoked, not resolved, conflict."
Take the now-defunct Pennsylvania law requiring married women to notify their husbands before having abortions, unless they fear a violent response. And indulge, for the sake of argument, critics' cynical assumption that Alito's vote to uphold this provision was driven by his political views -- contrary to the explanation in Alito's 1991 dissent that he was seeking only to follow binding Supreme Court precedents.
Outside the mainstream? Hardly. While The New York Times calls spousal-notice laws "extreme limits on abortion," some 70 percent of poll respondents favor them.
As for racial preferences, Alito's 1985 assertion that "racial and ethnic quotas should not be allowed" places him squarely in the middle of public opinion -- unlike Ginsburg, who has voted to uphold wholesale use of quota-like preferences in college admissions, contracting, and other areas.
Polls show overwhelming public opposition to quotas. And neutrally worded polls that avoid the word "quota" show that more than two-thirds of Americans oppose racial preferences.
Some critics fault Alito's 1996 vote to uphold a white teacher's racial-discrimination lawsuit against the Piscataway, N.J., school board, for laying her off ahead of a black teacher, in the name of "diversity."
Alito's response should be: Go ahead. Make my day. Let's discuss the legality of race-based layoffs. This one was so indefensible that racial-preference champions -- facing almost certain defeat in the Supreme Court -- paid the white teacher a large sum to drop her lawsuit before the justices could rule.
Democrats who think the mainstream is to be found on the leftmost shore of every river will be unmoved by Taylor's piece, but if you're interested in the coming battle over Alito's nomination you'll want to read the rest of his argument. It's well worth it.
