I think it would be just fine if Alito didn’t get confirmed, because I don’t trust him. Not about abortion, as I never expected to trust him on that one. He and I have differing opinions on that topic, but there’s nothing exactly surprising there, and I would be confused if there were. I think it’s a given that anyone Bush nominates will merrily work toward jamming the government’s invisible hand as far up a woman’s uterus as possible. Yes, today Alito is saying he’d deal with abortion cases with “an open mind,” and I’m sure he will, for the values of “an open mind” that are immediately followed by the phrase “on how to erode Roe v. Wade to a useless nub.”
(Oh, no, Roe v. Wade will never be overturned; the cover and fundraising opportunities it provides to conservatives is too useful. It’s just that from now on South Dakota will be the template for “reasonable” access to an abortion. Women with unwanted pregnancies, be sure to say “thanks” to those Nader voters! Yes, it’s still all their fault. As for the rest of you, well, just be sure to promote the advantages of abstinence and/or teenage lesbianism to your daughters.)
However, what I really don’t like about Alito is the whole philosophical set up he has of the administrative branch of the US government being more equal than the others. One would hope that someone at the topmost perch of the judicial branch would choose not to promulgate the theory that the highest and best thing he could in service to the country and its Constitution is to bend over for the president. It’s possible but unlikely that the Senate might agree to my innovative concept of co-equal government branches as well. We’ll see.
Of course, in the unlikely event that Alito is not confirmed, does anyone actually think the Bush administration will offer up a new candidate whose judicial philosophy isn’t mold-injected from the same factory as Alito’s? If we know anything about the Bush administration, it is that it is remarkably resistant to learning. It has its bag of tricks and vengeful petulance for those on whom its tools do not work, but that’s all its got. The administration got as close to moderation as it’s going to get with Roberts. And it’s pretty clear it’ll keep doing what it’s doing until 11:59 am, January 20, 2009. In that sense, not confirming Alito won’t solve anything.
Which is not a reason to confirm him — indeed not — just a recognition that the next nominee isn’t going to be any different.