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The anti-Miers

November 01, 2005

WELL, THAT DIDN'T TAKE LONG. President Bush has barely had time to file Harriet E. Miers' withdrawal letter, and already he has announced a new Supreme Court nominee. Judge Samuel A. Alito Jr. has been dubbed "Scalito" for his philosophical kinship with Justice Antonin Scalia, but he may be better understood as the anti-Miers.

Alito, who is a judge on the U.S. 3rd Circuit Court of Appeals in Philadelphia, is everything that Miers is not: qualified, experienced and male. By nominating him so quickly, Bush has answered the question of whether he would respond to the Miers fiasco by reaching out to moderates or repairing ties to his base. Apparently Bush thinks it is more important to appease extremists in his own party than to appeal to the broad spectrum of Americans.

Alito is the kind of hard-core conservative Bush said he would nominate in the first place. He has taken views on abortion (in favor of greater restrictions than the Supreme Court allows), gun control (opposed to congressional efforts to limit possession of machine guns) and antitrust law (skeptical of its aims, if not its very existence), to name three issues, that hardly qualify as mainstream.

These topics will be thoroughly ventilated in the weeks ahead. As a result, Alito's confirmation hearings, which may not begin until December, may be of some use for a change. Alito, who has written hundreds of opinions in his 15-year judicial career, will not be able to argue that he has no view on abortion, or even on Roe vs. Wade. At least not plausibly.

Alito's hearings will mark a return to form for Washington. Most of the time that's bad news, but hearings for Supreme Court nominees have become such comical spectacles that they turn the conventional wisdom on its head. So long as it's about legitimate issues, some good old-fashioned partisanship may be just what the judge ordered.

Black-box nominees such as Miers and, to a lesser extent, John G. Roberts Jr. are chosen in part because they give senators so little to go on. Roberts had thousands of pages of memos from his years of service in the White House, but most were off-limits to the Judiciary Committee, and those that remained he was able to disavow -- or "distinguish," to use a lawyer's term. And Miers had such a thin paper trail that decade-old thank-you notes were treated like law review articles. Her withdrawal was prompted by conservative dissatisfaction, not liberal opposition.

Now all is right with the world. Liberal interest groups and Democratic senators are criticizing the president's choice, and his allies are defending it. The battle lines are drawn, and they are familiar. Of course, this is no assurance that the coming fight will be edifying. But better to debate judicial philosophy and constitutional interpretation than executive privilege or Senate procedure. Even those opposed to Alito's nomination can be grateful for that.

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