I have nothing very novel or surprising to say about the Alito nomination.  But on the eve of his hearings it may be useful to summarize the essential case against him.  

When Samuel Alito applied for a political job in the Justice Department in 1985, he wrote that he had been inspired to go into law by disagreement with the "activist" decisions of the Supreme Court under Earl Warren and other liberal policies.  He mentioned particularly decisions in the areas of "criminal procedure, the Establishment Clause, and reapportionment."   He said he believes strongly in "limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values."  He added:  "I am particularly proud of my contributions in recent cases [in the Solicitor General's office under Reagan] in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion."  He  advertised his membership in a group of Princeton alumni who objected to opening up Princeton to women and minorities.

Now Alito is saying that the job memo doesn't tell us anything about how he would act as a judge because he wrote it as an "advocate" --- an advocate for himself, apparently -- applying for a political job in a conservative administration.  He says his briefs and arguments and legal opinions for the Justice Department are also irrelevant because he was just acting as an advocate for the executive branch.   He says that even his deeply held personal views on abortion and civil rights are irrelevant because he will be acting as a judge, not a person. (He also says he can't remember belonging to the Princeton alumni group, which I find rather hard to believe, since he was proud enough of it to put it on his job application.)

It's disturbing in itself that Alito, like John Roberts before him, will not take responsibility for or own up to his own beliefs.   He's always claiming, "That was somebody else back then" - but without saying how or whether he has changed, except that he is now a judge. The argument that he was just saying whatever it was convenient for him to say in order to get a job doesn't sound too good coming from somebody who is now trying to get another job.  There is something really slippery, or at least less than forthright, about his approach to his own record of actions and opinions.

Anyway, nobody can seriously suppose that Alito's beliefs will have no effect on his decisions, because they already have.  His manifesto of 1985 is a pretty reliable road map not only to his work for the Reagan Justice Department, but to his decisions as an appellate court judge.  

Backers of Bush's judicial nominees like to argue that, having won the election, Bush is entitled to put conservatives on the bench; but that, not to worry, his nominees will decide cases fairly and impartially.   But is Alito likely to be the kind of judge who so completely subdues his convictions to his role that nobody looking at his record - as John Roberts claimed was true of his old boss, Henry Friendly - could tell if he were liberal or conservative?   Or the kind of "conservative" judge in the mold of Frankfurter or the younger Harlan, who treads cautiously, defers to legislatures, sticks close to precedents, and construes statutes narrowly to avoid Constitutional questions?  Or a judge like Powell or O'Connor, who approaches every case as unique and different, and decides on nuances of particular fact?   Or even a judge whose views may generally accord with his party's, and who tilts towards the results his political sponsors prefer in close cases, but who does not actively seek to stretch or bend the law to pursue an ideological agenda?  If Alito were any of these, I doubt there would be much opposition to him.  I also doubt whether Bush would have wanted to appoint him.  

By all indications Alito is none of these.  He is not "conservative" in any plausible sense of the word except in style.  Unlike Scalia, with whom he is often compared, he is not given to announcing flamboyant declarations of principle or sweeping legislative-like rules, or lobbing rhetorical stink-bombs at his fellow judges.  By all accounts he is a low-key, pleasant man who respects disagreement and does not insult his colleagues on the bench.  He is a cautious craftsman who takes small discrete steps towards his objectives rather than daring leaps. Where the law is hard and clear, he does not defy it or try to amend it judicially - though of course as a Supreme Court justice he will have scope to modify even well-settled law.  

But wherever there is running room - opened up by gaps in application, conflicts in precedents, ambiguities in statutes - Alito is an activist who works steadily to push the law well beyond conventional boundaries of precedent.  There is nothing "restrained" about his opinions proposing to strike down one federal law banning machine guns for exceeding Congress's power under the Commerce Clause (U.S. v. Rybar, 1996); to strike down another mandating employers to grant medical leave to parents of newborn children for exceeding Congress's power under the Fourteenth Amendment (Chittister, 2000); and to construe regulatory and civil rights laws so restrictively as to frustrate their purposes.  He is for "limited government" and "federalism" when those principles point to less regulation of business and religious expression; but for authoritarian government when it acts in the causes of protecting national security or law enforcement and regulating morals.  He is in short a judge with an agenda, and the agenda is not "conservative" but right-wing-Republican.

Now of course the liberal lions of the Warren Court - Warren, Brennan, Black, Douglas, Goldberg, Fortas, Marshall -- were judges with an agenda too. Their agenda was to push the polity toward treating subordinated, excluded and marginalized people with dignity and as civic equals.  In this cause they construed the Constitution as a charter of equal rights and due process protections for the vulnerable; which limited the state's freedom to abuse and discriminate against those subject to its authority, but licensed a large governmental role in regulating the economy, expanding social security and health care, and promoting civil rights.  Their agenda, and that of the liberal Congresses of the 1960s and 70s that wrote the legislation to make it effective, is of course what provoked the revolt of the conservatives and inspired the young Samuel Alito to join it.  Alito and his comrades went into law to dismantle the achievements of the New Deal, Warren Court and Great Society, the social policies and civil rights protections and both the restrictions on and expansion of government authority of the liberal state.  Some of us may regard this as a rather pinched and negative set of ideals, but to them it was a noble crusade.

So now they are in power, why shouldn't it be their turn?  Why - as exasperated conservatives like Bruce Fein keep asking -- do their nominees have to conceal their activism, pretend that they are "mainstream" judges, really hardly distinguishable from liberals?  Why does Bush pick stealth candidates like Roberts and Alito, rather than open and forthright radicals like Michael Luttig of the 4th Circuit or Edith Jones of the 5th Circuit or Janice Rogers Brown of the D.C. Circuit?  The obvious reason is that large parts of the conservative agenda are quite unpopular, and candidates who openly avowed it would risk being voted down.  Polls say that around 70 per cent of the public does not want Roe v. Wade, the decision conferring a constitutional right to abortion, overruled.  So a pro-life nominee has to send signals to backers on the cultural right that he is a reliable vote on the abortion issue while at the same time reassuring liberal pro-choice Senators that he has not made up his mind.  And the backers who have picked him because they think he's a vote for their side on the abortion issue have to pretend along with him that they think he has an open mind, even though they would never have pushed for and supported his nomination if they actually believed he had an open mind.  (Harriet Miers really did seem to have an open mind on issues like gay rights, and look where that got her!) Alito has made this straddle very difficult by previous statements that he thought the Constitution did not protect the right to an abortion; by recommending litigation strategies in the Justice Department for getting Roe dismantled stage-by-stage and ultimately overruled; and finally, by writing a dissent as a judge on the 3d Circuit in an abortion case that would have allowed a state to restrict abortion rights by requiring a woman to notify her husband first - an issue that, on appeal, the Supreme Court decided the other way, 6 to 3.

In short, the Bush people's strategy with judicial nominees is the same as their strategy with the other legacies of the liberal state.  As the fiasco of his proposals to revise Social Security made clear, Bush cannot get the legislative votes to repeal the New Deal and Great Society social safety nets, or legislative protections of labor, work safety and the environment and regulation of corporate frauds and torts. As protests mount over torture, indefinite detentions, spying without warrants, and the Patriot Act, he cannot count on Congress to ratify his claims of unlimited executive power in wartime.   But he can appoint people in the executive and judicial branches who will work toward these aims covertly, gradually, and under the radar, while feigning otherwise.  

In two broad areas especially, Alito promises to be a dangerous servant of the agenda....