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How to Judge Alito By: Henry Mark Holzer
FrontPageMagazine.com | Tuesday, November 01, 2005


Much will be said in days to come about Supreme Court nominee Samuel Alito: his academic background at Princeton and Yale; his distinguished career as a government prosecutor and appellate lawyer; his experience in representing the United States twelve times before the Supreme Court of the United States; his hundreds of opinions during fifteen years as a member of the United States Court of Appeals for the Third Circuit.

The esteem in which he is held by colleagues, on and off the bench, will be emphasized, as will be the unanimous Senate vote he enjoyed in 1990, when President George H. W. Bush nominated Judge Alito for the Third Circuit.

 

None of this, of course, will favorably impress the liberalcrats, whose rancorous ranting has already begun to emanate from the usual suspects – with Reid, Kennedy, and Schumer in the lead. They and their handmaidens in the media and pressure groups will scrutinize Judge Alito’s many opinions – majority, concurring, and dissenting, as well as those in which he did not write but merely joined – looking for something, anything, to prove that he is not the reincarnation of the policy-making Sandra Day O’Connor.

 

While the liberalcrats are going down that road – which, for them, is a dead end – some conservatives may need a yardstick by which to measure Judge Alito’s judicial credentials.

 

That yardstick can be found in the opinions of a Supreme Court justice whom

Judge Alito will doubtless soon join: Justice Clarence Thomas.

 

I have just finished writing a book entitled Keeper of the Flame: The Supreme Court Jurisprudence of Clarence Thomas. To write the book, I analyzed every one of Justice Thomas’ 327 opinions, written during his fourteen terms on the Court.

 

To the extent Justice Thomas’ jurisprudence is reflected in Judge Alito’s Third Circuit opinions, and as well in his Senate testimony, conservatives can rejoice. For Justice Thomas understands the appropriate role of a Supreme Court justice, the proper methodology for decision-making, and the answers to fundamental constitutional questions – among them, federalism, separation of powers, judicial review, and such Bill of Rights issues as abortion, affirmative action, the death penalty, and the alleged rights of prisoners. Does Judge Alito?

 

Conservatives can begin to answer this question by looking more specifically at Thomas’ mode of constitutional interpretation, which is based on the premise that the document is not a hunk of clay to be molded by justices in the shape of their own personal values. Thomas begins with the words of the Constitution itself, and, if necessary, looks to how they were understood by the Framers. Does Judge Alito?

 

Thomas believes that the doctrine of Separation of Powers means that federal courts should not legislate, or usurp the powers of the executive. Does Judge Alito?

 

Justice Thomas has written time and again that an aspect of separation of powers is the “vertical” relationship of the federal government to the states, and that the Constitution’s Tenth Amendment must be read to keep the federal government out of what is peculiarly state business – and that the Commerce Clause must be read to limit the power of the federal government. Does Judge Alito?

 

Unlike virtually every one of his current colleagues, and certainly those who have preceeded him as justices of the Supreme Court, Thomas refuses to censor political speech in the name of “protecting the electoral process.” He also refuses to consider so-called “commercial speech” as a lesser form of what the First Amendment is supposed to protect. Does Judge Alito?

 

His Eighth Amendment jurisprudence is unique, because he holds that the “Cruel and Unusual Punishments” Clause, as originally intended and written, does not create a vast cornucopia of so-called “prisoners’ rights.” Does Judge Alito?

 

Justice Thomas stands alone as a Supreme Court justice in expressly challenging the junk Swedish and other social “science” upon which the 1954 Brown v. Board of Education school desegregation decision was based, and in believing that paternalistic racial discrimination, such as “Affirmative Action,” is just as offensive and unconstitutional as malignant racial discrimination. Does Judge Alito?

 

These comments are but the tip of the iceberg. And there is much more about the jurisprudence of Clarence Thomas that Judge Alito could do well to emulate.

 

It is against that jurisprudence that the qualification of Samuel Alito for the Supreme Court must be judged by conservatives. If he passes that test, President George W. Bush will not only have redeemed himself from the Harriet Miers near-disaster, he will have struck a memorable blow for the Constitution of the United States of America and, like Justice Thomas, added to the Court yet another “Keeper of the Flame.”

Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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