Just Right

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

Judge Samuel A. Alito is one of the nation’s outstanding jurists. He will be confirmed, notwithstanding the overheated complaints of his rapid-response critics, and he will be a first-rate justice of the Supreme Court.


Like Chief Justice Roberts, who was confirmed just a few weeks ago, Judge Alito has stellar qualifications, an excellent reputation for fairness and decency on the bench, and a long, diverse record of public service to the law and to our Constitution.


I should admit, though, that my own enthusiasm for Judge Alito’s nomination might be, at least in part, a bit selfish. As it happens, my first (and only) oral argument in the United States Court of Appeals was before a panel that included Judge Alito. The case was ACLU v. Schundler, and it involved a public holiday display – one that included a creche and a menorah – in Jersey City, New Jersey. It was the ACLU’s view that the display violated the First Amendment because it excessively “entangled” church and state and impermissibly “endorsed” religion. I argued, on the other hand, that the display was best regarded as an acknowledgment, not an “establishment,” of residents’ faith and as a celebration of Jersey City’s cultural diversity.


At the time, I was a newly minted law-firm associate and, truth be told, nervous and inexperienced. Judge Alito was gracious and encouraging during my brief, 10-minute presentation, and he was nice enough to throw me a generous softball question to put me at ease, much as he recalled yesterday that Justice O’Connor had done for him during his first argument before the Supreme Court. More importantly, Judge Alito wrote an opinion for the court concluding (correctly) that the display was constitutional.


In fact, in several cases, Judge Alito has been a clear and consistent defender of religious freedom in the public square. Like Justice O’Connor, whom he will succeed, Judge Alito has in a number of opinions made clear that our Constitution promises freedom of religion, not freedom from religion; that the First Amendment exists in order to protect religion, not to banish it; and that, in our traditions, religious expression is valued, not suspect.


It was predictable, but it is still unfortunate, that within minutes of Judge Alito’s nomination, interest groups’ misleading talking points were flooding the airwaves and the Internet, warning grimly of the dangers Judge Alito allegedly poses to their preferred policy positions. In fact, Judge Alito is a brilliant, respected, collegial, mainstream conservative. He has more judicial experience than any nominee in decades. He was a successful and conscientious federal prosecutor, he advised the Attorney General of the United States on constitutional matters while serving in the Department of Justice, and he argued a dozen cases before the Supreme Court as a lawyer in the Solicitor General’s office.


Clearly, any argument that Judge Alito is not qualified to serve on the Court, or that he lacks the necessary temperament, education, and experience, would be frivolous. Accordingly, those who have immediately jumped to oppose him have done so because they believe that Justices of the kind President Bush promised to appoint – that is, mainstream conservatives committed to the rule of law and to judicial modesty – will be less inclined to give these opponents the policy victories in the courts that they have been unable to obtain at the ballot box.


So, we can all expect to be bombarded for the next few weeks with misleading claims about Judge Alito’s views and record on hot button topics like abortion, religious freedom, federal power, and civil-rights laws. One hopes that the press will do their job, and throw cold water, when appropriate, on these baseless, inflammatory claims.


Here is what we can expect from Justice Alito: He will do his best, in every case, to interpret and apply the law as it is, and not to remake the law according to his own view of what it should be. His vision of the Constitution is one that takes seriously the idea that judges’ role in resolving policy debates is a very limited one. Justice Alito, when he is confirmed, will not be in the business of imposing his policy preferences on Americans, but will instead enforce and maintain the structure of government that our Constitution created, one in which individual liberty is protected by dividing and limiting the power of government.



Mr. Garnett teaches criminal and constitutional law at the University of Notre Dame.


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