Regular readers of the Fifth Column might have noted that I stayed very quiet on the Harriet Miers nomination. There's a reason for that: I knew nothing about her. By the time I knew enough about her to begin to form an opinion, she was gone.
Judge Alito’s record has come forward with a lot more detail in a lot less time. Within just a few hours of his nomination, many people began to be concerned about his abortion decisions. In three cases out of four, he came down on the wrong side.
Two of my seven brothers and sisters are lawyers. As a result, I am not as concerned about these decisions as some have been. I am not saying there is no cause for concern, just that the reason for concern is not necessarily as clear-cut as one might think.
It is important to remember that judges who regularly get over-ruled don’t advance. Period. According to the legal profession, the best judges are the judges whose decisions don’t get altered a few months later by a higher court. So everyone in the profession has in interest in being right every time.
Given these facts, Alito’s 2000 decision, in which he ruled the same way the Supreme Court had just finished ruling, was a no-brainer. The only way he could have avoided making the ruling the way he did was to resign his judgeship. Now, one can argue that the judiciary is so corrupt that Catholics should get out of the profession. But moral dilemmas are not always clear-cut.
Take the very similar case of the anti-Nazi activist who went so far underground in WW II that he actually took a job in Nazi government. When the Allied war crimes trials accused him of participating in the mass-killing process through which innocent civilians, both Jews and Gentiles, were murdered, he pointed out that he had, in fact, always been anti-Nazi. Further, while he had to participate in sending some individuals to certain death, his decision to remain in his position had also allowed him to save several hundred men and women marked for death. Dozens of people whose lives he had clandestinely saved came forward to testify that this was true.
Now, we certainly may not do evil that good may come of it, but there is also something to be said for standing in the midst of evil in order to mitigate it.
In that spirit, Alito’s ruling that the unborn are not protected by the constitution may sound callously pro-choice, but it is not necessarily so. One could argue that he just repeated what SCOTUS said, but with a bluntness so hard-edged that it almost mocks SCOTUS. That is, he said from the bench what pro-life activists have said about SCOTUS for years – it doesn’t give a damn about the unborn. He just did it in a way that wouldn’t allow anyone to crucify the Catholic. If this reading is correct, Alito is wise as serpents.
The striking down of a Pennsylvania law on Medicaid abortions in cases of rape and incest is likewise a situation in which Alito simply followed precedent. If he had ruled any other way, SCOTUS would have struck him down, as he had already discovered when he ruled that wives had to notify their husbands prior to abortion. He correctly surmised that if wives, after consensual sex, didn’t have to tell the man they had contracted marriage with about an upcoming abortion, then women, after coerced sex, were unlikely to have to tell the contracting agency, that is, the state anything about the circumstances surrounding an upcoming abortion either.
So, these rulings really tell us only that Judge Alito watches his p’s and q’s. And, given his mother’s revelation (God bless her!), I find that most telling. Everyone called Harriet Miers “the stealth candidate” because there was so little paper trail on her judicial philosophy. But as Edgar Allen Poe noted, and at least one anti-Nazi activist discovered, sometimes the best stealth is managed by hiding in plain sight.