The New York Times Bashes Judge Alito

In an editorial today titled "Judge Alito's Radical Views," The New York Times issued its altogether unsurprising conclusion that the so-called Newspaper of Record now officially opposes the confirmation of Judge Samuel Alito to be the next associate justice of the Supreme Court.

For the sake of perspective, it should be noted at the outset that, not too long ago, "gay marriage" was widely considered to be a radical, outlandish idea. Today, it is the preferred social policy position of the New York Times. Radical does not mean wrong. But Judge Alito is no radical.

According to the Times, Alito "has also put forth the outlandish idea that if the president makes a statement when he signs a bill into law, a court interpreting the law should give his intent the same weight it gives to Congress's intent in writing and approving the law." Alito did advocate a policy of Presidents issuing signing statements during the Reagan administration, and it is far from "outlandish."

All three co-equal branches of the federal government have a duty to interpret the Constitution. Indeed, the power of judicial review does not explicitly appear in the document. When interpreting an ambiguous provision of a statute, the courts have long looked to congressional reports written to illustrate the intentions behind various provisions of a proposed bill. A bill cannot become law without the signature of the President. He may only sign it if he believes that certain provisions should be interpreted a certain way.

It seems quite reasonable for a President to provide his own interpretation of the bill and for the courts to weigh his statement accordingly. If Congress disagrees with the signing statement, it may pass another law stating unequivocally how the law should be interpreted. The President would then be presented with another veto decision. Apparently, this sensible constitutional tweak is too "pro-Executive Branch" for the Times.

The Times also argues: "Judge Alito would also work to reduce Congress's power in other ways. . . . [A]s a government lawyer he insisted Congress did not have the power to protect car buyers from falsified odometers." This assertion is a bold-faced mischaracterization of the record.

During an exchange at the hearings that took place between Alito and Senator Diane Feinstein, the Senator pointed to a statement that Alito wrote while at the Office of Legal Counsel, when he recommended that President Reagan veto an odometer fraud bill because he believed it violated the principles of federalism. Alito explained that the memo was "primarily expressing . . . [not] an interpretation of the scope of Congress's constitutional authority but a recommendation based on the federalism policies of the Reagan administration." Alito never said that Congress did not possess the power to regulate odometers, but rather that it should defer to the states on that issue. The Times's assertion is a gray lie.

Then, the Times observes: "There is every reason to believe . . . that Judge Alito would quickly vote to overturn Roe v. Wade. So it is hard to see how Senators Lincoln Chaffee, Olympia Snowe and Susan Collins, all Republicans, could square support for Judge Alito with their commitment to abortion rights." It may be that these senators do not believe that mere ideological disagreement on a single issue with an otherwise stellar nominee of impeccable reputation is a sufficient basis for rejecting his nomination. This would square with the understanding of the past 200-plus years of judicial confirmation hearings.

The Times editorial rejects Alito purely due to its disagreement with Alito's supposed ideology and tries to cast his views as "radical" or "extreme" in attempt to muster the exceedingly rare case where a nominee's views are so repugnant as to mandate his rejection. The only thing repugnant here is the Times's flimsy attack on Alito.