By Maurine Jensen Proctor
Editor’s Note: You can support Alito’s
confirmation by writing or calling your senator today. This
is extremely important. Contact your senator by clicking
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Last
week at the National Press Club, a group of Women Against
Alito crashed a meeting of Women for
Alito, which was followed by a group of African Americans
for Alito who had just missed
the meeting of Law Students Against Alito.
Then
yesterday at the Supreme Court, people against Alito
angrily interrupted a press conference of Americans for Alito, pushing 15-year olds holding signs that said “Confirm
Alito.”
click
to enlarge
A brief clash of people and posters
occurred at the press conference here on the steps of the Supreme
Court.
No
doubt about it, there are strong feelings afoot about the confirmation
hearings taking place this week for Samuel A. Alito
— and they have less to do with the man himself or his qualifications
than about underlying philosophical issues. Alito is a brilliant, exceptional jurist, who just received
a unanimous “well-qualified” rating from the American Bar Association
after a long and careful scrutiny.
Those
who have worked with him like Hannah and John Smith, Latter-day
Saints who clerked for Alito hold
only the highest praise for his fairness and integrity. (See
accompanying story)
What
the fuss is about is that unfortunately the confirmation process
has become an ideological war.
Everyone
knows that we are on the brink of change and the nature of the
Supreme Court is hanging in the balance.
Special
Issues
On
one level the contest appears to be about specific issues like
abortion. The cultural left wants to be assured, for example,
that Samuel Alito would uphold the
infamous Roe v. Wade that legalized abortion. Some senators
backed by the powerful pro-abortion lobbies have made not overturning
Roe v. Wade almost a litmus test for their Supreme Court confirmation
vote.
What
pro-abortion advocates euphemistically call “choice” is championed
with high emotion and great stakes. “We will do what it takes
to defeat Alito” is the mantra of
special interest groups like People for the American Way and
NARAL.
Thus
leading up to the confirmation hearings these groups have combed
through hundreds of pages to create their cases against Alito,
and they often resort to distortion of the facts to make their
case. These distortions not only are repeated in the press,
but sometimes in the mouths of senators.
For
example, Senator Patrick Leahy said in his opening remarks at
the hearing, “I will as the judge knows ask about the disturbing
memorandum he wrote… in that he professed concern with the fundamental
principle of one-person, one-vote, a principle of the quality
that is the bedrock of our laws.”
In
reality, Judge Alito has stated that
the principle of one-person, one vote is a bedrock principle
of American constitutional law and has never taken issue with
the principle — even in the memorandum to which Leahy refers.
A
Culture War
The
reason for the uproar around confirmation is that we are in
a culture war in this country. In that battle, Robert Bork says,
”The Supreme Court is particularly potent because when
it speaks in the name of the Constitution, whether it speaks
truly or not, as to that issue the democratic process is at
an end. That is why so many interest groups that cannot get
their cultural agenda through any legislature, appeal to the
justices to make up new and previously unimagined rights. And
the justices do just that. As Justice Scalia
said in a dissent, “Day by day, case by case, [the Court] is
busy designing a Constitution for a country I do not recognize.”
The
cultural left wants to redesign the foundations of the country.
When they cannot succeed in their agenda through the voice of
the people, they turn to the courts to advance their cause.
A potent example is Massachusetts where their superior court
mandated gay marriage — a radical social ideal that the population
may not have ever approved.
click
to enlarge
An empty stroller brigade has been
an effective tool in bringing the abortion issue to the forefront
of many rallies.
The
nation is still hotly divided over abortion because it was thrust
upon us by the elites of the court who found in the constitution
a “right” that nobody had ever found there before. Not only
does a good portion of the population find it morally wrong,
their voice was taken from them by a handful of elites.
The
Supreme Court, says Bork, is both a cause and a symptom of movements
in our culture. “Our judicial elites, with politicians and pundits
close behind, are already at work deconstructing our most fundamental
institutions — marriage, the family, religion, equality under
the law.
“Courts,
even with the assistance of politicians and bureaucrats, have
not, of course, accomplished this deconstruction entirely on
their own. They reflect and advance a cultural movement that
has been growing for many decades and which erupted and became
full-blown in the late 1960’s and early 1970s…
“In
a word, the Court, along with the elites of the universities
and journalism among others has been overtaken by political
correctness.” It is the agent that the cultural left uses to
create their own new vision of the world.
The
Bigger Question
While
the questions at stake in the Alito
confirmation concern abortion, religious freedom, the nature
of marriage, they all hinge on something else. How do we regard
the Constitution of the United States?
Who
we support for the Supreme Court has everything to do with that
question. Too often the population has turned a blind eye and
deaf ear to Supreme Court confirmation hearings and the workings
of the court itself. They think it is a discussion for lawyers,
not a vital issue for citizens.
click
to enlarge
Judge Samuel Alito
arrives at 1st and Constitution Avenue and is warmly
greeted by supporters in front of the Hart Senate Office Building.
Yet
as responsible citizens in a free land, with the great gift
of the Constitution, there is little of more importance.
John
Adams described the Constitutional Convention as “the greatest
single effort of national deliberation that the world has ever
seen” — a seminal event in the history of human liberty. As
Latter-day Saints we believe the Constitution was inspired of
God, an agent to create a free people as God intended us to
be.
“Written
constitutionalism implies that those who make, interpret, and
enforce the law ought to be guided by the meaning of the United
States Constitution — the supreme law of the land — as it was
originally written,” said David F. Forte. In that is our safety.
In that has been a key source to America’s
greatness.
“This
view,” says Forte, “came to be seriously eroded over the course
of the last century with the rise of the theory of the Constitution
as a “living document” with no fixed meaning, subject to changing
interpretations according to the spirit of the times.”
The
debate has many nuances, but on the most basic level the problem
with a “living” document is that it can be stretched, tugged
and pulled until it no longer resembles itself. Wouldn’t James
Madison have been surprised to know that a right to abortion
had been hidden in the lines of the Constitution he helped form?
The very religious John Adams would have been shocked to know
that the Massachusetts constitution had secretly hidden the
right to gay marriage.
If
the Constitution does not give us a fixed foundation, but allows
us to stray according to the ideologies of the judge, then our
freedom is much less assured than we ever supposed.
The
cultural left and their radical agenda for America
that undermines family and religion has a great stake in the
idea of a living constitution, because it is judges who they
see as key players in advancing their agenda.
Thus,
you will hear these kinds of questions hurled at Judge Alito
and debated in the press. How will you uphold the rights of
privacy? How will you uphold the rights of the little guy? There
is only one question. “How will you uphold the Constitution?”
Tony
Perkins of the Family Research Council said, “Sen. Herb Kohl
(D-WI) spoke for the liberal view when he said, in homely terms,
‘before we give you the keys to the car, we want to know where
you will take us.’ Here, in a nutshell, is the gaping flaw in
the liberal view of the Supreme Court and its powers. They really
do think the Judiciary runs the country. They seem to
think their only role as lawmakers is to turn thumbs up or down
on federal judges — who they admit have the keys to drive the
car.
“Last
night, we heard the AIDS activists chanting outside Philadelphia's
Greater Exodus Baptist Church: ‘Under Alito/Our Rights are finito [ended].’
That's the rub, too. Note their word: under. In Judge
Alito's view we are Under God and Under the Constitution,
but we are certainly not under the judges. I believe
that is the correct constitutional view. Sen. Sam Brownback
(R-KS) politely reinforced that point when he cited the great
Chief Justice John Marshall. Marshall was a tremendous jurist,
but he limited his powers to the idea that judges "shall
say what the law is." They don't write the laws. They don't
execute the laws. That's because, as even Franklin D. Roosevelt's
friend and appointee Justice Felix Frankfurter noted, the courts
function best when they function "within narrow limits."
A
judge’s role is not to create new policy, craft regulations,
or read dubious new rights into the Constitution. A judge is
not a super, unaccountable legislator who erodes the voice of
the people. We want a judge who sees his role with modesty and
restraint and believes his duty is simply to uphold the Constitution-not
a particular political agenda.
Judge Alito is very unlikely to participate
in any effort by the court to issue new decisions that are not
truly justified under the Constitution. He’s very unlikely
to find new constitutional rights that are going to interfere
with the people to enact appropriate laws through their legislatures.
Judge Alito should be supported because
he’s fair, intelligent, independent, brilliant, but most of
all because he’s modest.
