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November 25, 2005



PAUL GIGOT: Welcome to THE JOURNAL EDITORIAL REPORT. Members of the Senate left Washington for the long Thanksgiving holiday, but many of them could not escape the rising tension surrounding the Supreme Court nomination of Judge Samuel Alito. It's one of the pivotal moments of the Bush presidency, and pressure groups on both sides have taken the fight to television, using commercials to target districts where there are Senators who may not have made up their minds.

Here are some samples:

WOMAN: Judge Alito is the right pick to be the next associate justice of the United States Supreme Court.

WOMAN: Samuel Alito, threatening fundamental rights and freedoms.

MAN: Those who work for him know he'll make a great Supreme Court justice.

MAN: As a judge, Alito ruled to make it easier for corporations to discriminate.

MAN: Judge Alito is a man of honor, integrity, principles ...

MAN: He even voted to approve the strip search of a 10-year-old girl.

MAN: He doesn't have a political agenda. He doesn't pre-judge any case that comes before him.

MAN: As a government lawyer, Alito wrote, "The constitution does not protect the right to an abortion."

WOMAN: He has a long record of judicial experience and a life-long commitment to public service.

WOMAN: Contact your senators. Tell them the court belongs to all of America.

WOMAN: The Senate should confirm Judge Alito to the United States Supreme Court.

MAN: The right wing has already taken over the West Wing. Don't let them take over your Supreme Court.

With me to discuss what these commercials have to do with the confirmation fight are: Dan Henninger, a columnist and deputy editor of THE WALL STREET JOURNAL editorial board; and Jason Riley, also a member of the editorial board. Dan, the air war is beginning, the hearings are only -- well, they're not going to start until January. Why is everybody starting this so early?

DAN HENNINGER: Well, let the revels begin. I mean, they TV things up like it was the Super Bowl or a heavyweight boxing match. And I think there's some irony in this. This is telling me that the process is validating the opposition that some of us set up to Harriet Miers, and we ended up with Judge Alito in his stead. It also validates the process that we have described on this program before, of the conservative movement over the past 15 years trying to develop a bench, literally, of justices and judges who understand what the Constitution means, and what the basis for their reasoning is. And what you're running into here is a process in which the hearings are teed up as an individual is for abortion or against abortion, or he's for gay rights or against gay rights.

PAUL GIGOT: Results-oriented?

DAN HENNINGER: Results-oriented. And what the Alitos and Roberts of the world prove is that they actually have legal reasoning beneath what they believe, that it's just not a battle of the ideologues. And I think that the court, the Supreme Court, is benefiting greatly from a process that is pushing towards it people who actually know why they think what they believe in legally.

PAUL GIGOT: I think some of his opponents, particularly on the left, think that the only way they're going to beat him is if they go on the air right now and influence the senators, because Alito had a pretty good launch -- a very good launch -- in the start of his nomination. And so they're on the air now trying to influence those senators. And the lesson that a lot of conservatives learned from Bork, the Robert Bork defeat in the late 1980s, was you can't let them define the terms of the debate.

DAN HENNINGER: It's part of the game now, but you still have to hold those hearings.

PAUL GIGOT: No, and there will be those hearings, and that'll be the pivotal moment. Jason, Some of Alito's critics think they've found a smoking gun in a job application that Alito made 20 years ago in the Reagan administration in which he attacked decisions of the Warren court on "criminal procedure, the establishment clause, and reapportionment" -- that one word "reapportionment" has created quite a fuss with Senator Joe Biden, the Delaware Democrat, saying that this could be a cause for a filibuster even. What's going on here? What's the accusation?

JASON RILEY: Well, this is again one of the phony debates that's being manufactured here by the left. And reapportionment were these decisions in the sixties regarding how voting districts would be drawn. And they're trying to imply that Alito somehow wants to dilute the influence of black voters. It's trying to go after him on civil rights grounds.

But the larger picture here is that it sort of shows the desperation of the left on going after Alito. I think you have a man who spent 15 years on the federal bench; he's participated in 35 hundred opinions, written close to 300 himself. And given that wide body of stuff to go through over the past month what have they come up with? Combing through a job application 20 years ago and trying to infer from this word bad things.

DAN HENNINGER: But this is another example. I mean, the reapportionment case, the buzz word they're going to use is "one man, one vote."

PAUL GIGOT: Baker versus Carr.

DAN HENNINGER: Baker versus Carr. Judge Alito, are you against one man, one vote? That phrase was created by Attorney General Bobby Kennedy back in the sixties. That was his phrase. And the person who debated him most strongly over resisting using it was his solicitor general, Archibald Cox, who is a liberal saint. All of this will come out in the hearings. And I think if they push this line of argument, they're going to look very silly.

PAUL GIGOT: Yes, Jason?

JASON RILEY: Again, the big picture that I see here is this is all evidence of the left trying to push their agenda through the courts, because they've been unable to do so to the legislature, because they can't win elections. And if the left really has a problem with who Bush is nominating, they should start winning elections.

PAUL GIGOT: Well, but in terms of the politics of this nomination, though, there is a question about Judge Alito and what he would do with precedent. And he raised the issue of the Warren court precedents, which are really, they're sacred to a lot of Americans on the left. And the question is, would Judge Alito overturn those precedents? Have we learned anything in the last month about Judge Alito which tells us whether he would or would not do that. I'm talking about the criminal procedure cases like the Miranda cases. We're talking about abortion rights, obviously. Other cases?

JASON RILEY: I don't think we're talking about -- when the left uses the word "precedent," they're talking about abortion pretty much, what he would do on Roe v. Wade. Precedent only means something to them when it's a precedent that they favor. Two years ago, in Lawrence v. Texas, when the Supreme Court found that anti-sodomy laws were unconstitutional, they overturned a 1986 precedent. The left wasn't shouting and screaming over that. So it's precedent, it's code, for what would he do on Roe v. Wade. And again, another phony issue.

PAUL GIGOT: So what do you think he'd do on Roe v. Wade?

JASON RILEY: He would probably do what his mother said, which is that he's against Bush, and he'd probably act accordingly.

PAUL GIGOT: Well wait a minute, but you're saying that he would vote based on results orientation. I actually think he would not vote to overturn he would think very hard about overturning Roe. And he may not in the end do it, and that's because this is not a recent precedent. This is a precedent that has had a long history now, over 30 years, and has had several cases since Roe that have reinforced it. And so overturning it would be a much bigger thing.

I'll tell you the case I do think he would overturn on the abortion front, and that is the Carhart case in 2000, the Nebraska partial birth abortion case, which was a 5-4 decision, and which has not been reinforced by any other decisions. He and Robert, I would bet, would overturn that one. But I think Roe is a much bigger issue.

If you look at Alito's legal reasoning, he's not somebody who strikes me as somebody who would run roughshod over a precedent, Dan.

DAN HENNINGER: Judge Alito is the sort of judge who, if a state, say, were to enact gay rights or right to assisted suicide, he is likely to not resist overturning a law like that because he's so respectful of the political process inside state legislatures. And I think liberals should take advantage of that.

PAUL GIGOT: Okay, Jason, very quickly. Will he be confirmed? And with how many votes?

JASON RILEY: I think he will be confirmed, and if Roberts got 78, I think that Alito will get at least 65.


DAN HENNINGER: I think it's probably 60-40. And for sure, everybody who's even thinking in their shower of running for the Democratic nomination for president, is going to vote against him.

PAUL GIGOT: Yeah, I would have thought 55 at first. But I think he might be over 60, and he will be confirmed. All right, thank you both.

Next subject.