Washington Post: Confirm Samuel Alito

The Washington Post editorial board urges the Senate to “Confirm Samuel Alito.”

He would not have been our pick for the high court. Yet Judge Alito should be confirmed, both because of his positive qualities as an appellate judge and because of the dangerous precedent his rejection would set.Though some attacks on him by Democratic senators and liberal interest groups have misrepresented his jurisprudence, Judge Alito’s record is troubling in areas. His generally laudable tendency to defer to elected representatives at the state and federal levels sometimes goes too far — giving rise to concerns that he will prove too tolerant of claims of executive power in the war on terror. He has tended at times to read civil rights statutes and precedents too narrowly. He has shown excessive tolerance for aggressive police and prosecutorial tactics. There is reason to worry that he would curtail abortion rights. And his approach to the balance of power between the federal government and the states, while murky, seems unpromising. Judge Alito’s record is complicated, and one can therefore argue against imputing to him any of these tendencies. Yet he is undeniably a conservative whose presence on the Supreme Court is likely to produce more conservative results than we would like to see.

Which is, of course, just what President Bush promised concerning his judicial appointments. A Supreme Court nomination isn’t a forum to refight a presidential election. The president’s choice is due deference — the same deference that Democratic senators would expect a Republican Senate to accord the well-qualified nominee of a Democratic president.

Quite so.

Update: Their counterparts at the Boston Globe, however, say Alito is “Not fit for the court.”

Amid the torrent of words uttered this week, it was disturbing to note what Alito didn’t say. He did not say that Roe v. Wade was settled law. He would not publicly condemn the odious Concerned Alumni of Princeton club he once claimed fealty to, whether he was an active member or not. He did not say, as Chief Justice John Roberts did in his hearings: ”I am not an ideologue.”

This page supported Roberts’s appointment to the court despite his conservativism because we felt he has a supple mind that can embrace modern ambiguities. We do not have such confidence in the text-obsessed Alito.

It should be remembered that Bush nominated Alito only after his first choice, Harriet Miers, was roundly rejected by extreme conservatives who found her ideology insufficiently pure. These were not people who wanted an independent, open-minded jurist. They have smugly signaled that they approve Bush’s second choice. We can not.

Needless to say, I disagree. Roe v. Wade isn’t settled law; indeed, there have been numerous cases since then on the subject of abortion. Nor is there any reason he should proclaim what his record clearly demonstrates, that he is neither a bigot nor an ideological extremist.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. ken says:

    This endorsement doesn’t make any sense at all. It is if the WP doesn’t understand that our senators were just as much elected as was our president. Our senators obligation is to us, not to the president.

    If the democratic senators believe that it is in the best interest of their constituants to stop this nominee from the supreme court then they should use every method they can to do so.

    That is what America is all about.

  2. Ol' BC says:

    This is indeed a quite surprising for a liberal publication. BUT, if Stevens seat comes available soon, don’t expect “due deference” – it is in fact a one way street to the left. We won’t be seeing any confirmations from the left approaching the deference the GOP showed Ginsburg. Maybe the Post is laying groundwork for opposing the next Dubya nominee, which appears more likely every day, and trying to portray some level objectivity.

  3. Mark says:

    The LA Times puts it this way:

    Alito would not have been our choice to replace Sandra Day O’Connor on the court. It is understandable that, unlike now-Chief Justice John G. Roberts Jr., he may not win many Democratic votes. Conversely, there are no legitimate grounds to entertain a filibuster of this nominee, or to be overly shocked that he is the sort of justice Bush would select.

    Bush never made any secret of his desire to put conservative jurists on the highest court, and he was elected to the presidency twice. One of the perks of the presidency, besides not having to sit through confirmation hearings, is shaping the Supreme Court. And one of the obligations of senators in the minority, after forcing a nominee to listen to them, is allowing the president’s nominee an up-or-down vote.

    Now, Ken may not like the fact that Bush is not putting in judges that tend to give child rapists 60 days in prison, but he’s just going to have to live with the consequences of his guy losing.

  4. ken says:

    Mark, one of the perks of a Senator is unlimited debate. So if the president nominates someone unworthy of all 100 senators then he or she can be blocked by filibuster. That is one of the reasons we elect senators: to exercise that priviledge when it is necessary to protect our rights, defend the constitution, or stop evil legislation from passing.

    I suggest you review your high school civics lessons.

  5. Herb says:


    Kind of looks like you have a dose of sour grapes. You are on the losing side on this one, Alito will be confirmed, so say goodbye to your liberal buddies on the court. Their legislating days of The SCOUS are over.

    As for the Boston Globe article, What else would you expect from a state that produced Kennedy, Kerry and a very liberal out of tuuch State Supreme Court.

  6. Jack Ehrlich says:

    Ken, you are wrong in your assessment of the senates job is when it comes to the process of appointing a judge to the US Supreme court. Opinion is not a disqualifying characteristic for a candidate.

  7. Anderson says:

    Mr. Ehrlich, would you care to cite to the Constitutional provision you have in mind for your statement? Unless, of course, it’s just your “opinion”?

  8. M1EK says:

    “We won’t be seeing any confirmations from the left approaching the deference the GOP showed Ginsburg.”

    Hatch basically recommended Ginsburg to Clinton’s people. So this is a bullsh*t attempt at equivalence.

  9. Herb says:


    I have read your kind comment to Mr Erlich and wish to ask you where in the Constitution does it say that “Opinion” is a disqualifying characteristic for a cadidiate.

    Your answer will be greatly appreciated in that you seem to tout yourself as the expert on the Constitution

  10. Rick DeMent says:

    Their legislating days of The SCOUS are over.

    Ah, but take heart, the legislating days of conservative judges has just begun.

  11. Ben There says:

    I am upset with my Virginia congers men. I want junkyard dogs tearing out the throats of nonbelievers. Instead I get pussy cats playing senior statesman.

    Tit for tat, an eye for an eye. What goes around comes around. We never had any problems playing payback in Korea.

  12. Herb says:

    Risk DeMent:

    What makes you so sure that a conservative court will legislate from the bench like the liberal court has been doing for years now.

    Maybe you just hace some inside info we don’t have. Is so, let us all in on it or, is your thinking just DeMent-ed

  13. McGehee says:

    Hatch basically recommended Ginsburg to Clinton’s people. So this is a bullsh*t attempt at equivalence.

    So the fact Hatch recommended her makes her less of a liberal than her entire pre-SCOTUS record makes clear?

    If anything, the fact a Republican recommended her demonstrates that Republicans DO believe in deference to the political views of the man duly elected president and having the constitutional power to nominate judges.