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Alito: Good for the Jews By: Michael Rosen
FrontPageMagazine.com | Tuesday, December 06, 2005

As left-wing, Jewish groups flock to denounce Supreme Court nominee Samuel A. Alito, the community as a whole would do well to take a step back and evaluate him fairly and comprehensively.

The ire of organizations like the National Council of Jewish Women (NCJW) – which has vowed to contest the nomination – centers mainly on Alito’s perceived opposition to abortion.  But regardless of the leftist groups’ misunderstanding of Alito’s opinions on abortion, notwithstanding the politics of Roe v. Wade, and despite my own reluctance to play the “good-for-the-Jews?” game, there’s little doubt that Justice Alito will offer the American Jewish community reason to celebrate – if we can only overcome our myopia.

What’s undisputed are the nominee’s stellar qualifications.  Alito has served with distinction as a federal appellate judge for fifteen years, a post to which the U.S. Senate unanimously confirmed him.  During that time, he has authored hundreds of opinions that have earned accolades for their clarity and intellectual depth. 


Prior to ascending the bench, Alito worked in the Justice Department for thirteen years as a federal prosecutor, an assistant to the Solicitor General, and a legal advisor to the Executive Branch, arguing 12 cases before the Supreme Court.


A graduate of Princeton and Yale Law School, Alito has won plaudits from liberals and conservatives alike; Judge Edward Becker, one of his colleagues on the bench and a Democratic appointee, has called Alito an excellent choice and a mensch.


But leftist Jewish organizations have pounced on his nomination, largely because of abortion politics.  Yet this antagonism is as misguided as it is shortsighted.  First, while Alito has reportedly expressed his personal opposition to abortion, his judicial opinions in this controversial area have assiduously followed Supreme Court precedent in Roe v. Wade. 


In the landmark Casey decision, a Pennsylvania law required parental consent prior to a minor’s obtaining an abortion and certain reporting mechanisms, elements that were upheld by the Supreme Court. 


The law also required that a woman seeking an abortion notify her husband unless he was not the father, could not be found, or posed a risk of bodily injury (incidentally, such notification laws enjoy the support of three-quarters of Americans polled).  Carefully employing the framework outlined by Justice Sandra Day O’Connor, the jurist whom he would replace on the High Court, Judge Alito held in dissent that spousal notification did not impose an undue burden on abortion. 


While the Supreme Court, by a 5-4 vote, ultimately rebuffed Alito’s conclusion, his dissent was firmly grounded in Roe v. Wade jurisprudence.  Of course, a thoughtful analysis pales in comparison to simplistic headlines like “Alito’s Opinions Show Hostility to Abortion Rights.” 


Misunderstandings aside, left-wing Jewish groups’ arrogant attempts to speak for the Jewish community as a whole lack credibility.  While the Jewish mainstream may not support an outright ban on abortion, it embraces diverse views and, in any case, largely rejects the left’s calls for abortion on demand.


More importantly, Alito’s opinions in several crucial cases involving the free exercise of religion offer a window into the impact his confirmation may have on American Jewry. 


In the 2004 Blackhawk opinion, Judge Alito found for a Native American required to pay a special fee for owning animals for religious purposes.  Alito held that a civic ordinance may not “target religiously motivated conduct either on its face or as applied in practice.”  More importantly, he affirmed the key elements of the famous Tenafly Eruv case where the court found that a New Jersey town discriminatorily forbade the construction of an eruv – a symbolic enclosure enabling Jews to carry on Shabbat. 


Alito has also ruled that a police department could not forbid Muslims from wearing beards when it permitted others to do so for secular reasons; that religious groups could not be excluded from participation in after-school programs; and, in a concurrence praised by Jewish advocate Nat Lewin, that a university could not discriminate against a Shabbat-observant professor, since “criticism of an employee’s effort to reconcile his or her schedule with the observance of Jewish holidays delivers the message that the religious observer is not welcome at the place of employment.”


In short, Alito has fiercely and fairly defended the rights of believers – Jewish and non-Jewish alike – to practice their beliefs freely.  As the Orthodox Union’s Nathan Diament has written, Alito possesses “not only a sensitivity for the position and needs of religious minorities, but also a vigorous view of free exercise rights.”


What’s more, Alito’s work as a federal prosecutor bodes well for the War on Terror, an issue of particular concern to the Jewish community. 


As the United States Attorney for the District of New Jersey, Alito acquired broad experience in targeting organized crime.  Having served in a position that required him to make careful judgments about whom to prosecute and how to do so, Alito – more than any of his future colleagues on the Supreme Court – is intimately acquainted with the challenges confronting interrogators of members of criminal organizations as well as the need to provide basic protections for suspects. 


As the war against militant Islam stretches into its fifth year, and as foreign terrorists increasingly seek redress in U.S. courts, Alito’s real-world prosecutorial know-how will serve the country well.  And as supporters of Israel – which sits at the forefront of the War on Terror – all of us in the Jewish community should welcome the understanding that Alito will bring to the High Court.


Thus, if American Jews carefully examine Alito’s illustrious record, they will find clear reasons to support his nomination.  Let’s get past the shrill rhetoric and have an honest conversation.


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Michael M. Rosen, an attorney in San Diego, taught in Harvard's government department from 2001-2003.

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