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David N. Mayer

Life and Death Decisions Update

In a previous entry I discussed Gonzales v. Oregon, the case challenging the constitutionality of Oregon’s physician-assisted suicide law, the first major case considered by the U.S. Supreme Court since John Roberts became the new chief justice.  As I wrote in October, shortly after the Court heard oral arguments, the case raises important questions about federalism.  Although generally called the Oregon “assisted-suicide” case, “it does not directly concern an individual’s right to physician-assisted suicide – not any more than the case decided by the Court in June [2005], Raich v. Gonzales, directly concerned an individual’s right to use marijuana for medicinal purposes.  Instead, like Raich, what the case directly concerns . . .  the reach of federal powers under the “Commerce Clause,” of Article I, Section 8 of the Constitution.  [T]he question, essentially, is:  Does Congress have unlimited power over matters that affect the lives and liberties of individuals in the United States?”  (“Life and Death Decisions, Part II,” October 21, 2005.) 

Yesterday, in a 6-3 decision, the Court upheld the Oregon law, rejecting the Bush administration’s broad interpretation of federal drug laws as preempting state laws like Oregon’s.  The majority of the justices, instead, interpreted federal laws narrowly enough to give the states discretionary authority to regulate physicians, a traditional “police power” reserved to the states.  

The decision falls far short of recognizing anything like a federally-guaranteed “right to die”; indeed, it fails even to recognize – as the Court should have – that the U.S. Constitution guarantees to the states (through the Tenth Amendment) their authority to recognize an individual’s “right to die,” free of interference by federal law.  Rather, the decision shows only that, on this particular issue, a majority of the justices are unwilling to read existing federal drug law broadly enough to trump the states’ traditional role in regulating the practice of medicine.  Or precisely, the majority of the justices are unwilling to allow the executive branch to interpret existing drug laws so broadly in their enforcement.  (The case turned overtly on questions of statutory interpretation and executive power, rather than the constitutional question of the scope of Congress’ power.  In this, it differed from the Court’s previous decision in Raich.) 

The decision seems “conservative,” in this literal sense.  Interestingly, however, the six-justice majority in the decision comprised the Court’s four left-liberal justices (Breyer, Ginsburg, Souter, and Stevens) joined by the two “moderate” conservative, “swing” justices (Kennedy and O’Connor).  Chief Justice Roberts joined the Court’s two most “conservative” justices, Scalia and Thomas, in dissent.  Thus the decision also shows the inconsistency of both liberals and conservatives with regard to federalism, as well as the propensity of all the justices (again, liberal and conservative alike) to make “activist” decisions:  in this case, disregarding fundamental constitutional principles to reach the result that each individual justice likes, on a controversial issue of public policy.  Again, the Court reached the right result – for the wrong reasons, not going as far as the consistent application of fundamental constitutional principles would have demanded. 

Finally, the decision also puts in perspective the anticipated confirmation of Judge Samuel Alito as Justice O’Connor’s successor on the Court.  Among other things, it shows – contrary to the hysterical arguments advanced by Alito’s opponents – that on major constitutional questions, the replacement of a moderate conservative like O’Connor with a more consistent conservative like Alito will have minimal impact on the so-called “balance” of the Court.  

Gonzales v. Oregon: The Court’s Decision

In my October 21 entry, I described the case as follows: 

Oregon’s Death with Dignity Act (enacted in 1994 and effective January 1, 1998) allows, under certain conditions, physicians to help a terminally ill patient die by prescribing fatal doses of narcotic drugs.  In 2001 then-Attorney General John Ashcroft asserted federal authority under the CSA to bar doctors from prescribing the lethal doses of barbiturates that the Oregon law allowed them to prescribe to assist terminally-ill persons to end their own lives.  Ashcroft maintained that physician-assisted suicide had no “legitimate medical purpose” and that therefore doctors who gave out drugs under the Oregon law could lose their licenses.  After the state of Oregon challenged Ashcroft’s directive, the U.S. Court of Appeals for the Ninth Circuit ruled in 2004 that the attorney general lacked the power to intervene.  That court of appeals decision is what the Supreme Court will review; the case is now titled Gonzales v. Oregon because Alberto Gonzales has replaced Ashcroft as attorney general.

The critical question for the Court, again, is basically a question of federalism.  Even the conservative editors of the Wall Street Journal have recognized that, in their words, “at bottom, the Oregon case turns on whether the Attorney General can, by an act of administrative fiat, nullify the expressed will of a majority of voters of one of the 50 United States” (referring to the fact that the Oregon law was twice endorsed by voters in state-wide referendums).  Conceding that the CSA gives the federal government the power “to regulate, bar, or restrict drug availability, up to a point,” the editors add, “The question in Gonzales is whether the AG can use that power to accomplish a quite different public-policy goal – the neutering of Oregon’s assisted-suicide law – simply by asserting that taking drugs to end one’s life is not a `legitimate medical purpose’ for a barbiturate.”   The Journal editors also corrected noted the unusual politics behind this federalism question:  left-liberals now have “suddenly discovered, after years of promoting unlimited national power, that federalism has its uses after all”; while some social conservatives are “ignoring their federalism principles in order to enforce from Washington a policy outcome that they favor (preventing the legalization of assisted suicide).”  To their credit, the editors recognize that federalism ought not be a left-right issue; that it’s really “a question of freedom and good governance” (“The New New Federalism,” Oct. 5).

Although the questions asked by individual justices during oral argument are not always reliable predictors of how those justices ultimately will decide the case, in this case the questions posed during the oral argument in early October really did anticipate some of the justices’ decisions.  

As I previously noted, retiring Justice Sandra Day O’Connor seemed critical of the U.S. Justice Department’s position.  During oral arguments, she had asked U.S. Solicitor General Paul Clement, “Well, certainly the practice of medicine by physicians is an area traditionally regulated by the states, is it not?”  When Clement began to answer, “It absolutely is, but--,” O’Connor cut him off, saying, “And there is nothing expressly [in federal anti-drug law] suggesting that it’s designed to put in the hands of the federal government or the attorney general the regulation of the practice of medicine, is there?”  Not surprisingly, O’Connor joined in the majority opinion, written by Justice Anthony Kennedy, which followed basically the same rationale she suggested by her questions during oral argument. 

On the other hand, Chief Justice Roberts, during the Oct. 5 oral arguments, seemed more sympathetic to the national government’s position, asking the attorney for Oregon, “Doesn’t [Oregon’s law] undermine the uniformity of federal law?”  As noted above, Roberts joined Justices Scalia and Thomas in dissent, taking a relatively broad view of federal law. 

Although I erred in predicting that justices’ handling of the Oregon case would parallel their handling of the California medical-marijuana case, Raich v. Gonzales, last June (partly because I failed to see that the Court would treat the case as a narrow one of statutory interpretation), I did correctly predict what turned out to be the critical difference in facts that the majority used to distinguish the Oregon case from Raich:  the fact that the drugs at issue in the Oregon case were not per se illegal under the federal Controlled Substances Act (CSA), as was marijuana in Raich, but instead were legal drugs that require a physician’s approval.   

This was what I wrote in my previous entry: 

The close parallel to the issues in Raich suggests that a majority of the justices – the four left-liberal justices (Breyer, Ginsburg, Souter, and Stevens), joined by one or two of the “conservatives” (both Kennedy and Scalia joined the liberals in comprising the Raich majority) will side with Attorney General Gonzales, in taking a broad view of Congress’ powers under the Commerce Clause – allowing the federal “war on drugs” to trump any contrary state laws.  What might make the result in this case different from Raich, however, is the fact that it concerns drugs that aren’t per se illegal under the CSA but which rather are legal drugs that require a physician’s prescription and which are used to help effectuate a terminally-ill patient’s “right to die.”  (Although the Court, in its 1997 decision in Washington v. Glucksberg, had held that the U.S. Constitution does not protect a right to assisted suicide – notwithstanding the well-established common-law right to refuse medical treatment – Chief Justice Rehnquist’s opinion for the Court in that case expressed a concern that federal law should not preempt the “earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide” that ought to take place in the various states.)  Besides showing whether Chief Justice Roberts will continue or abandon his predecessor’s commitment to federalism – the so-called “New Federalism” of the Rehnquist Court – the other interesting question about this case is whether one or more of the “liberals” on the Court – Justices Ginsburg or Souter, perhaps, who seemed open to Oregon’s position -- will break ranks with their fellow left-liberal justices and recognize there are some limits to federal powers:  here, as O’Connor’s question suggests, an exception that allows states some discretion in regulating the practice of medicine.  Again, in other words, the case will determine how far we will go in nationalizing our laws. 

Contrary to my prediction, however, the four left-liberal justices, joined by Justice Kennedy, abandoned the nationalistic position they had taken in Raich and instead, in the apt words of the Wall Street Journal editorial on Oct. 5, seemed to discover “that federalism has its uses after all.”  Chief Justice Roberts, on the other hand, did seem to abandon his predecessor’s commitment to federalism, and joined by fellow conservative justices, Scalia and Thomas, seemed to be “ignoring their federalism principles in order to enforce from Washington a policy outcome that they favor (preventing the legalization of assisted suicide),” as the Journal editors put it on Oct. 5.  In their editorial today, the Journal editors noted the irony of the Court’s liberal justices supporting federalism – calling it “another case of results-oriented jurisprudence in federalist drag” -- while the three most conservative justices ignored federalism principles.  As the editors also noted,  

“The Bush administration was also guilty in this case of abandoning for political purposes what ought to be its own federalism principles.  Mr. Ashcroft had reversed a policy of the Clinton Administration in order to invalidate the Oregon law at the behest of social conservatives who had lost the political battle over assisted suicide in that state.  Results-oriented jurisprudence isn’t any more admirable from the right than it is from the left.”   

(“Federalism, a la Carte,” January 18.) 

In his opinion for the majority of the Court, Justice Kennedy held that when former Attorney General Ashcroft ruled that assisting suicide was not a “legitimate medical purpose” and therefore violated the Controlled Substances Act, the Attorney General went beyond the legitimate bounds of interpretation of the law he was charged with enforcing and instead claimed “extraordinary authority.”  

“If the Attorney General’s argument were correct, his power [to determine what under the law was criminal] . . . would be unrestrained.  It would be anomalous for Congress to have so painstakingly described the Attorney General’s limited authority . . . but to have given him, just by implication, authority to declare an entire class of activity outside `the course of professional practice,’ and therefore a criminal violation of the CSA.”

Through the law, “Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood,” Kennedy noted.  But “beyond this, however, the statute manifests no intent to regulate the practice of medicine generally.”  The silence of the law here is “understandable,” he observed, “given the structure and limitations of federalism, which allow the States `great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.’”  Indeed, he added, “the structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the States’ police powers.”  Thus, Kennedy concluded for the majority, when the Attorney General tried to criminalize something that Oregon made a legitimate part of medical practice, he in effect attempted “a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality,” an attempt “to alter the federal-state balance and the congressional role in maintaining it.”  In other words, the executive branch had abused its powers. 

Interestingly, Justices Scalia and Thomas authored separate dissenting opinions, with Chief Justice Roberts joining only in Scalia’s opinion.  Justice Scalia read in a significantly different way the Court’s prior decisions regarding the standard of deference to be given to executive agencies’ interpretations of the laws they enforce; he concluded that the Attorney General’s interpretation of “legitimate medical purpose” was “a perfectly valid” interpretation of the law.  Moreover, even if Ashcroft’s ruling were entitled to no deference whatsoever, Scalia added that “the most reasonable interpretation” of the statute would reach the same result.  “Virtually every relevant source of authoritative meaning confirms that the phrase `legitimate medical purpose’ does not include intentionally assisting suicide,” for assisting suicide is not “a form of `prevention, cure, or alleviation of disease’” and indeed has been determined by the AMA to be “`fundamentally incompatible with the physician’s role as a healer.’”  Scalia concluded by suggesting that the majority’s decision was “driven by a feeling that the subject of assisted suicide is none of the Federal Government’s business.”  That feeling, however easy it may be to sympathize with, nevertheless flies in the face of a series of Court decisions dating back to the early 20<sup>th</sup>-century that have allowed Congress to use its power to regulate interstate commerce “for the purpose of protecting public morality.”  “Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible.”  This case, however, turned not on the constitutional question but rather one of statutory interpretation.  “The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA.”  In the dissenters’ view, there is no doubt that Congress has:  “If the term `legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.”   

In his separate dissent, Justice Thomas noted the logical inconsistency between the majority’s position in this case and the decision (from which he also had dissented) in Raich.   A mere seven months ago, five of the six justices in the majority in Oregon had found broad federal authority under the same Controlled Substances Act to forbid the growing of medical marijuana, overruling a California law permitting the practice.  In Raich, the majority justified its result by interpreting the CSA as “`a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner’ “ (emphasis added by Thomas).  In this case, the majority “beats a hasty retreat from these conclusions,” finding instead that the CSA “is merely concerned with fighting `drug abuse’ and only insofar as that abuse leads to `addiction or abnormal effects on the nervous system.’”  Moreover, “the majority’s newfound understanding of the CSA as a statute of limited reach is all the more puzzling because it rests upon constitutional principles that the majority of the Court rejected in Raich”: 

“Notwithstanding the States’ `traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens,’ . . . the Raich majority concluded that the CSA applied to the intrastate possession of marijuana for medical purposes authorized by California law because `Congress could have rationally’ concluded that such an application was necessary to the regulation of the `larger interstate marijuana market.’  Here, by contrast, . . . there is nothing `obscure’ about the CSA’s grant of authority to the Attorney General. . . . And the Attorney General’s conclusion that the CSA prohibits the States from authorizing physician assisted suicide is admittedly `at least reasonable’ [as Justice Kennedy, for the majority, conceded]. 

“While the scope of the CSA and the Attorney General’s power thereunder are sweeping, and perhaps troubling, such expansive federal legislation and broad grants of authority to administer agencies are merely the inevitable and inexorable consequence of this Court’s Commerce Clause and separation-of-powers jurisprudence,” Justice Thomas added.  “I agree with limiting the applications of the CSA in a manner consistent with the principles of federalism and our constitutional structure. . . But that is now water over the dam.  The relevance of such considerations was at its zenith in Raich,” but these considerations “have little, if any, relevance where, as here, we are merely presented with a question of statutory interpretation and not the extent of constitutionally permissible federal power.” 

Thus did Justice Thomas expose the hypocrisy of the majority of the justices.  (Scalia, it will be remembered, concurred in the result in Raich, under a broad view of Congress’ powers under the Necessary and Proper Clause.)  Thomas summarizes the hypocrisy with considerable understatement:  “The Court’s reliance upon the constitutional principles that it rejected in Raich – albeit under the guise of statutory interpretation – is perplexing to say the least.”  More bluntly, the Wall Street Journal in today’s editorial noted that Thomas “seems to have cast what amounts to a protest vote for the minority,” signaling that “he’s not about the join the Court’s liberals in ignoring their own precedents simply to get to their favored policy conclusion.”   

The decision puts the controversial debate over physician-assisted suicide back in the hands of legislators.   The Court’s decision leaves open the possibility of Congress amending federal drug laws to prohibit physician-assisted suicide, and opponents of the practice can be expected to “make a new push on Capitol Hill to do with legislation what the high court wouldn’t allow to be done with regulation,” as today’s editorial in USA Today puts it.  More likely, however, the battle will shift to the state legislatures.  Thus far Oregon is the only state that has legalized physician-assisted suicide.  Similar proposals have failed in five other states in the past 15 years, and it is a crime in 44 other states (including Michigan, which passed made physician-assisted suicide illegal in 1998 in response to Dr. Jack Kevorkian’s antics).  As a radical individualist, I certainly support an individual’s right to die – an individual’s ownership over his or her own life, including the ability to determine when and how to conclude one’s own life, with the assistance of a willing physician.  The Bush administration’s advocacy of what the President calls “a culture of life” – which really negates this fundamental principle of self-ownership, by holding in effect that a person’s life is owned instead by government, which can use its coercive powers to prevent persons from concluding their lives when they chose to do so.  Contrary to the “slippery slope” arguments advanced by opponents of assisted suicide (including many medical professionals), I believe there is indeed a bright-line standard to distinguish proper regard for an individual’s right of self-ownership from the dangers of murder:  that bright line is a person’s own clearly-articulated choice to end his or her life.  (For more on this, see my previous entry, “A Life That One Owns,” Feb. 28, 2005.)

Political and Jurisprudential Divisions on the Roberts Court

Gonzales v. Oregon is the first major decision to reveal the fault lines that divide the justices on what is now the Roberts Court.  As with the Supreme Court under previous chief justices (the Rehnquist Court, 1986-2005, and the Burger Court, 1969-1986), the basic division among the justices seems to be a “liberal” (meaning, left-liberal) versus “conservative” split.  As the lineup of the justices’ votes in this case suggests, on one side are four justices who are, more or less, reliably “liberal” in their constitutional philosophy:  Justices Breyer, Ginsburg, Souter, and Stevens.  On the other side are three justices who are, more or less, reliably “conservative” in their judicial philosophy:  Justices Scalia and Thomas, and Chief Justice Roberts.  In the middle are the two moderate conservatives, Justices Kennedy and O’Connor, who seem to be the “swing” votes on the Court, sometimes siding with the four liberals and sometimes siding with the three conservatives.  Assuming that Judge Samuel Alito is, jurisprudentially, closer to Scalia or Thomas than to Kennedy, his replacement of Justice O’Connor would leave the Court split evenly, between four left-liberals and four conservatives, with Justice Kennedy in the critical “swing” position. 

What Gonzales v. Oregon also shows, however, is that it is sometimes misleading to characterize the justices in terms of the traditional left-right, or liberal-conservative, political division.  That division is often misleading, for it over-simplifies the complicated jurisprudential questions that divide the justices.  Rather than think of the jurisprudential division between “liberal” and “conservative” justices, in the conventional political senses of those terms (as used in modern American politics), for example, it’s usually more accurate to think of the basic division between “non-interpretivists” (those justices who look outside the text of the Constitution in making their decisions) and “interpretivists” (those who limit themselves to the text).  And the latter category consists of both “originalists” like Justice Thomas and “textualists” like Justice Scalia. 

Left-liberals typically lump Justices Scalia and Thomas together, calling them both “conservative” or even “ultra-conservative” (whatever the hell that means – interestingly, ultra-leftists typically fail to recognize the prefix’s applicability to their own “extreme” views).  This generalization is unjust, as I have frequently noted, because it ignores the important differences between the two justices, which illustrate the important differences that divide jurisprudential conservatism.  As I’ve noted in my previous writings, Justice Scalia’s literal textualism tends to ignore the broader context of the Constitution as a whole and especially its overall purpose to limit the powers of government; Scalia’s own social conservatism underscores his tendency to side with government and to uphold the exercise of political power by the majority.  In contrast, Justice Thomas comes closest (compared with all his other colleagues on the Court) to a jurisprudence that recognizes the importance of contextualism, although he understands it far better on questions of power (such as in his Commerce Clause opinions, for example his concurrence in Lopez v. United States (1995) or his dissent in Raich).  Compared to Scalia, Thomas certainly follows more closely an “originalist” approach, focused on the original meaning of constitutional provisions.  And generally unlike Scalia (with a few exceptions), Thomas is more likely to join the Court’s left-liberals in giving broad interpretation to enumerated rights protections in the Constitution.  Relative to not only Scalia but also to his other colleagues on the Court, Thomas is more of a libertarian – although he falls short of the kind of libertarian jurisprudence I’d advocate as the most faithful reading of the Constitution. 

The separate dissents by Justices Scalia and Thomas in Gonzales v. Oregon illustrate these differences within conservative constitutionalism.  Scalia reads the executive branch’s authority to interpret the laws it’s charged with executing fairly broadly – just as he (in his Raich concurrence) read Congress’s powers fairly broadly, virtually as broadly as the left-liberals on the Court have.  Thomas, in contrast, continues to believe (quite rightly, in my opinion) that the Court needs to reconsider its Commerce Clause jurisprudence, which gives Congress virtually unlimited powers.  Following the principle of stare decisis, however, Thomas also believes the Court should be more logically consistent with its prior decisions.  If the Court prohibits the states from opting out of federal drug laws – however questionable those laws themselves may be – in order to allow medical uses of marijuana, it makes no sense (as Thomas noted in his Oregon dissent) for the Court to allow the states to opt out of federal drug laws in order to allow physician-assisted suicide.   

I seldom agree with Justice Scalia, but he made one point in his dissenting opinion in the Oregon case with which I wholeheartedly agree.  As noted above, he observed that the majority’s decision was “driven by a feeling” of sympathy for physician-assisted suicide.  He’s right – and it’s hard, therefore, to escape the conclusion that the majority reached a logically inconsistent result in this case, compared to its prior decision in Raich, because of the justices’ own activism, following their own personal policy choices.  It should be noted, however, that Scalia is equally guilty of being activist, in his opposition to physician-assisted suicide on policy grounds.  Contrary to his attempt to marshal medical authorities “from Hippocrates to the current American Medical Association” that declare assisted suicide “not a legitimate medical purpose,” that determination really is a policy question that ought not to be left to federal government officials – neither the Attorney General nor the justices of the Supreme Court.  In this case, it seems, Justice Thomas was the only member of the Court who escaped the lure of judicial activism – in other words, the only justice to decide the case objectively, according to the law (however bad that law – the Court’s own Commerce Clause precedents – may be), rather than his own subjective values or policy choices. 

What remains to be seen, assuming that Judge Alito will be confirmed as Justice O’Connor’s successor, is what kind of a conservative he will be.  Will he be more in the libertarian conservative mold, of a Justice Thomas?  Or will he be more of an authoritarian conservative, like Justice Scalia or Chief Justice Roberts (as he thus far seems to be)? 

The Partisan Battle over Judge Alito’s Confirmation

Next week, the U.S. Senate finally is expected to vote whether to confirm Judge Samuel Alito as Justice O’Connor’s successor.  Senate Judiciary Committee Chairman Arlen Specter has set next Tuesday, January 24, as the day his committee will vote; and Senate Majority Leader Bill Frist has said that debate in the full Senate will begin the day after the committee vote.  If the senators vote as the political pundits have predicted, the votes will be along party lines, with the Judiciary Committee narrowly voting to recommend Alito and with the majority of the Senate voting to confirm him – with all Republicans voting “Yes” and most Democrats voting “No.”  (There will not be a filibuster because the Democrats know they lack the votes to sustain a filibuster – and also know that if they were to attempt it, the Republican leadership in the Senate might very well invoke the so-called “nuclear option” – which really is the “constitutional option” – and end the unconstitutional practice of filibusters, at least as applied to judicial nominees, once and for all.  For more on this, see my previous entry, “Bust the Filibuster!” January 27, 2005.)    

As I noted in my previous entry, “Senatorial Activism and the `Judicial Activism’ Debate Revisited,” members of the Senate (and particularly Senate Democrats) have been abusing their confirmation power by second-guessing President Bush’s choice of Judge Alito as a nominee, questioning his judicial philosophy and even his personal views.  Unable to challenge his qualifications on legitimate grounds – for, by all accounts, Judge Alito is superbly qualified to be an associate justice on the Supreme Court – Democrats have been playing politics with his nomination, using the Judiciary Committee hearings as a forum to muster support from the left-wing special-interest groups that will bankroll the Democrats’ reelection campaigns.  Knowing that they lack the votes to thwart Judge Alito’s confirmation, Senate Democrats have been delaying both the committee vote and the floor vote in order to milk, for all that it’s worth, the political capital they hope to gain with the special-interest groups that are opposing Alito.

The left-wing campaign against Judge Alito, simply because he is a conservative, has grown increasingly hysterical.  Most outrageous is the charge that Alito is an “extremist,” outside the “mainstream” of constitutional law.  That myopic view results from the arrogance of left-liberals and the near-monopoly they hold in the legal academic world and in the organized bar.  Judge Alito’s brand of judicial-restraint conservatism may be a minority position in those spheres, but it is hardly outside the mainstream.  Indeed, the left-liberal ABA gave Judge Alito its top recommendation, as “highly qualified.”  Perhaps the best summary of where Judge Alito stands with regard to the so-called “mainstream” of American constitutional law was given by Charles Fried, former U.S. solicitor general during the Reagan administration and now a Harvard law professor, when he testified at the end of the Alito hearings last week, as part of a panel of academics and judges in support of Alito.  Professor Fried characterized Judge Alito as being “in the mainstream,” albeit tending “toward the right bank of the mainstream” – in comparison to the last two justices added to the Court, Justices Ginsburg and Breyer, both Clinton nominees who clearly “tended toward the left bank of the mainstream,” but nevertheless were overwhelmingly confirmed by the Senate in 1993 and 1994, respectively. 

The hypocrisy of Senate Democrats in not giving the same deference to a Republican president’s choice of a conservative justice, that Senate Republicans in the early 1990s gave to a Democratic president’s choice of two left-liberal justices, would be astounding – if it were not so typical. 

Carping over CAP

Again, lacking any legitimate grounds on which to oppose Judge Alito’s confirmation, Senate Democrats have resorted to sleazy personal attacks.  The most outrageous of these has been the attempt by Teddy Kennedy and his allies (including allies in the news media, like USA Today left-wing commentator DeWayne Wickham) to paint Alito as a racist or a sexist because of his association with the group Concerned Alumni of Princeton (CAP) in the early 1980s.  (It was this attack, principally, that last week prompted Republican Senator Lindsey Graham’s supportive rhetorical question to Alito – “Judge, you’re not a sexist or a racist, are you?” – and which resulted, famously, in Judge Alito’s wife temporarily leaving the hearing room, in tears, overcome by emotion.  Like Justice Clarence Thomas’ famous comment about being subjected to a “high-tech lynching” when Senators raised Anita Hill’s spurious charges of sexual harassment in 1991, that moment aptly characterized the unfairness of the public “show trials” these hearings have become.) 

Apparently, when applying for a job in the Reagan administration’s Justice Department in 1985, Alito (as DeWayne Wickham has characterized it) “burnished his conservative credentials by touting his membership in CAP,” which he identified as “a conservative alumni group.”  (Alito also mentioned his membership in the Federalist Society for Law and Public Policy, the conservative-libertarian coalition group that left-liberals also have tried unfairly to demonize.)  It’s also apparent that although Alito joined the group, there’s no evidence of his active involvement in it – despite Senator Kennedy’s attempt to engage in a fishing expedition in executive session, which lead to another dramatic moment during last week’s committee hearings, Kennedy’s confrontation with Senator Specter. 

Notwithstanding efforts by Teddy Kennedy and his allies to paint CAP as a group that “tried to keep blacks, Hispanics, and women out of Princeton University” (as Wickham characterized it), the evidence shows that the real purpose of the group was to oppose the University’s left-wing policies.  Those policies included a school ban on the ROTC (the only issue Judge Alito could recall as a reason for his support for CAP), as well as affirmative-action admissions policies that used numerical quotas that resulted in the admission of unqualified (or at least less-qualified) students who happened to be black or Hispanic.  Indeed, in the 1980s, CAP’s chairman had sent a letter to members in which he complained about Princeton having “an 11% quota” for the admission of black and Hispanic students – a policy which, if Princeton were not a private school but rather a state school, would have been illegal, under the Supreme Court’s 1978 decision in the Bakke case, which barred the use of quotas in admissions as violations of the Equal Protection Clause as well as federal civil-rights law.  Kennedy and others also have taken out of context a certain passage which appeared in an article in CAP’s magazine, allegedly complaining that “blacks and Hispanics `don’t seem to know their place’ in this country,” as Wickham described it (“Alito’s attempt to shed old alliance doesn’t ring true,” Jan. 17).  What these critics have overlooked is that the article clearly was intended as a parody, satirizing left-wing views of conservatives.  (The fact that Kennedy et al. missed this point illustrates, as some conservative pundits correctly have noted [choose one]: either (a) leftists are naïve, (b) leftists have no sense of humor, or (c) leftists are so anxious to oppose Alito that they are obviously clutching at straws.) 

One of the founding members of CAP, Judge Andrew Napolitano, a libertarian conservative who’s now a legal analyst on Fox News (and whom I greatly respect), has confirmed that the organization was opposed to leftist policies like race-preference “affirmative action” admissions and the ROTC ban; it was, in short, a mainstream conservative group that certainly was not trying to “turn back the clock on coeducation at Princeton,” as Alito’s critics have alleged.  The only thing shameful about Judge Alito’s association with CAP, it seems to me, is his attempt to distance himself from the organization (no doubt under the advice of his political handlers):  there’s nothing shameful about being opposed to affirmative action.  As I plan to discuss next week in my next entry, “Affirmative Racism,” it’s the proponents of affirmative action – those who advocate the use of race preferences in college admissions or in hiring – who should be on the defensive, for such affirmative-action programs are, in fact, unconstitutional (when used by state agencies), immoral, and indeed racist.   

So what if Judge Alito once – 20 years ago, well before his 15-year tenure as a federal appellate court judge – had joined a university alumni group that was opposed to affirmative action policies?  Opposition to affirmative action is well within the mainstream of American politics.  By their blindness to this, left-liberals are obviously out of touch with political reality – and obviously out-of-the-mainstream “extremists” themselves!

 | Link to this Entry | Posted Wednesday, January 18, 2006 | Copyright © David N. Mayer